THE  WAPPETAW  CHURCH  CASE. 

pplemental  Bill — Arguments  for  the  Relators  ;  William  Whaley , 
Counsel. 

rhe  important  question  in  this  cause  is,  whether  t$e  Act  of  the 
gislature  of  South  Carolina  of  the  17th  December,  1834, 
ere  by  it  was  enacted  that  the  Act  entitled  an  Act  for  incorpor- 
ng  the  Society  for  the  relief  of  Elderly  and  Disabled  Ministers 
d  of  the  Widows  and  Orphans  of  the  Clergy  of  the  Independent 
Congregational  Church  in  the  State  of  South  Carolina,  ratified 
the  7lh  March,  1789,  be,  and  the  same  is  hereby  repealed,  by 
1  with  the  consent  of  the  said  Corporation,  is  or  is  not  constitu- 
nal.  Upon  which  result  depend  the  two  practical  questions  : 
First,  whether  the  donations  by  the  Society  in  aid  of  the  Circular 
uch  are  or  are  not  misappropriations  of  the  funds  of  this  charity 
its  Trustees,  the  Society: 

And  Secondly,  if  they  are  misappropriations,  whether  there  is 
a  general  right  in  Equity  to  follow  the  Trust  Funds  so  mis- 
died,  into  the  hands  of  the  Circular  Church,  a  volunteer  with 
dee  of  the  trust. 

rhe  origin  of  this  Society  is  involved  in  some  obscurity  as  to 
date,  but  its  design  and  its  objects  are  manifest  to  all  who  will 
k  into  its  early  history. 

Some  time  previous  to  1789,  a  number  of  pious  persons  belong- 
r  to  the  Independent  or  Congregational  Church  in  the  State  of 
uth  Carolina,  imitating  the  example  of  the  Episcopal  Church, 
d  having  a  living  instance  before  them  of  the  necessity  of  such 
Association,  in  the  person  of  the  Rev.  Josiah  Smith,  a  disabled 
esbyterian  Minister,  who  had  labored  for  their  spiritual  benefit 
their  own  vineyard,  associated  themselves  together  for  the  sole 
rpose  of  raising  a  fund  and  establishing  a  charity;  out  of  which 
assurance  of  aid  and  relief  would  be  guaranteed  for  all  time  to 
dr  elderly  and  disabled  Ministers  while  living,  and  a  suitable 
wision  for  their  Widows  and  Orphans  when  dead. 

As  it  is  an  obligation  of  the  Gospel”  they  say  in  their  Preamble,  “on  Chris- 
s  of  all  denominations  to  encourage  and  support  its  Ministers,  who  are  their 
tors  in  the  Lord  ;  and  as  it  appears  to  us  that  due  encouragement  may  be  more 
itainly  and  extensively  provided  and  secured,  by  adding  to  the  usual  sup- 
[  afforded  to  Gospel  Ministers  during  their  health  and  usefulness,  an  assurance 
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of  aid  and  relief  when  they  are  disabled  for  the  services  of  God’s  Vineyard,  and  i 
provision  lor  their  Widows  and  Orphans  when  they  are  removed,  without  leavir 
them  a  coiripetent  support,  we,  the  subscribers,  therefore  desirous  of  carrying  th 
good  purpose  into  effect,  and  of  testifying  our  regard  to  them,  who  have  faithful 
labored  amongst  v.s  in  the  Gospel,  do  hereby  solemnly  associate  and  bind  ou 
selves  under  the  following  rules  : 

Such  were  the  sentiments  which  kindled  up  that  bright  flame  ( 
Christian  charity;  such  were  the  sentiments  which  moved  ill 
benevolent  hearts  and  the  wise  understandings  of  Drs.  Rolling 
head  and  Keith  with  their  associates;  so  as  to  determine  thei 
that  this  good  deed  should  not  be  done  in  a  corner;  that  it  shoul 
not  pass  away  with  their  day  and  generation,  or  be  limited  to  the 
own  Congregation,  but  that  for  all  time  and  for  all  Ministers  wt 
should  labor  for  them  and  become  old  or  disabled,  or  die  poo 
leaving  needy  families,  this  assurance  of  aid  and  relief,  and  < 
future  provision  should  be  firmly  granted  and  perpetually  estal 
Lislied.  It  was  then  and  under  such  circumstances,  that  thisAssi 
ciation  in  1789,  presented  themselves  before  the  Legislature  i 
South  Carolina;  with  their  petition: 

“To  the  Honorable  Jacob  Head,  Esq.,  Speaker,  and  the  rest  of  the  House  of  Kept 
sentatives  in  General  Assembly  met: 

‘■The  humble  petition  of  the  subscribers  sheweth,  That  your  petitioners  at 
many  others  have  taken  into  their  serious  consideration  the  distressed  situatic 
in  which  Elderly  and  Disabled  Ministers,  and  the  Widows  and  Orphans  of  tl 
Clergy  of  the  Independent  or  Congregational  Churches  are  frequently  placed 
left,  and  are  desirous  to  associate  themselves  together  for  the  purpose  of  esla 
lishing  a  fund  for  their  benefit. 

“  That  your  petitioners  conceive  their  design  would  be  more  effectually  prompt 
by  their  being  incorporated  ;  which  would  enable  them  to  appropriate  their  fun 
to  greater  advantage,  aud  to  conduct  their  affairs  with  greater  certainty  than  tb 
otherwise  could  do. 

“  Your  petitioners  therefore  pray  that  your  Honorable  House  would  be  pleased 
pass  a  law  for  incorporating  them  as  a  Society  by  the  name  and  style  of  1 
Society  for  the  Benefit  of  Elderly  and  Disabled  Ministers,  and  of  the  Widows* 
Orphans  of  the  Clergy  of  the  Independent  or  Congregational  Churches  in 
State  of  South  Carolina;  and  that  the  said  Society  may  have  all  the  privile 
usually  annexed  to  an  incorporation. 

“And  your  petitioners  will  ever  pray,  &c.” 

This  Petition,  expressing  the  same  sentiments  and  ackno 
edging  the  same  objects,  prays  an  act  of  Incorporation,  t 
their  designs  may  be  more  effectually  promoted,  that  their  fuifl 
may  be  applied  to  greater  advantage,  and  that  their  affairs  nfl 
be  conducted  with  greater  certainty,  and  that  their  charity  nia 
be  perpetual.  Such  was  the  avowed  purpose  of  these  Petitw 
ers.  They  asked  no  pecuniary  aid;  they  desired  no  directiin 
as  to  how  their  funds  should  be  applied,  or  as  to  whom  tlfl 
beneficiaries  should  be;  they  were  only  solicitous  that  the  fv- 


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reign  Power  should  bestow  that  immortality  which  they  alone 
juld  bestow  upon  the  artificial  being  which  they  (jesired  to 
reate,  and  invest  that  being  with  power  to  dispense  such  aid 
3  they  had  collected,  to  such  persons  as  they  should  direct, 
ir  all  time.  The  Legislature  granted  the  prayers  of  the  Peti- 
oners  and  passed  an  Act  in  precise  conformity  with  their  views 
nd  wishes. 

“Whereas,  William  Hollingshead,  Isaac  S.  Keith,  and  Josiah  Smith,  with 
indry  other  members  of  the  Society  for  the  Relief  of  Elderly  and  Disabled  Min- 
ters,  and  of  the  Widows  and  Orphans  of  the  Clergy  of  the  Independent  or 
ongregational  Church  in  the  State  of  South  Carolina,  by  their  petition  to  the 
eneral  Assembly,  have  set  forth,  that  they  had,  with  many  others,  taken 
to  their  serious  consideration,  the  distressed  situation  in  which  Elderly  and 
disabled  Ministers,  and  the  Widows  and  Orphans  of  the  Clergy  of  the  Inde- 
mdent  or  Congregational  Churches  were  frequently  placed  and  left ,  and  had  there- 
ire  associated  themselves  together  for  the  charitable  purpose  of  establishing  a 
md  towards  their  relief;  but  the  petitioners  are  of  opinion  that  so  benevolent  a 
ssign  would  be  more  effectually  promoted  by  their  being  incorporated;  they 
terefore  humbly  prayed  that  a  law  might  be  passed  for  incorporating  them  as  a 
ociety,  by  the  name  and  style  of  “  The  Society  for  the  relief  of  Elderly  and  Disabled 
Iinisters,  and  of  the  Widows  and  Orphans  of  the  Clergy  of  the  Independent  or 
ongregational  Church  yn  the  State  of  South  Carolina ,”  and  that  they  might  have 
lithe  privileges  usually  annexed  to  such  an  incorporation. 

'■'■Be  it  therefore  enacted  by  the  Honorable  the  Senate  and  House  of  Representatives 
ow  met  and  sitting  in  General  Assembly ,  and  by  the  authority  of  the.  same ,  That 
re  Society  above  mentioned,  and  the  persons  who  now  are,  or  shall  hereafter  be 
tembers  thereof,  and  their  successors,  officers,  and  members  of  it,  shall  be,  and 
ley  are  hereby  declared  to  be,  one  Body  Corporate,  in  deed  and  in  name,  by  the 
ame  of  “  The  Society  for  the  Relief  of  the  Elderly  and  Disabled  Ministers,  and  of  the 
Vidows  and  Orphans  of  the  Independent  or  Congregational  Church  in  the  State  of 
outh  Carolina;  and  by  the  said  name  shall  have  perpetual  succession  of  Officers 
nd  Members,  and  a  Common  Seal,  with  power  to  change,  alter,  break,  and  make 
ew  the  same,  as  often  as  the  said  corporation  shall  judge  expedient ;  and  the  said 
irpora'tion  and  its  successors  shall  be  able  and  capable  in  law  to  purchase,  hold, 
ave,  receive,  enjoy,  possess,  and  retain  to  itself,  and  its  successors,  in  perpe- 
lity,  or  for  any  term  of  years,  any  estate  or  estates,  lands,  tenements  or  heredita- 
ents  of  what  kind'or  nature  whatsoever,  and  to  sell,  alien,  exchange,  demise. 

•  lease  the  same,  or  any  part  thereof,  as  it  shall  think  proper;  and  by  its  said 
mte  to  sue  and  be  sued,  implead  and  be  impleaded,  answer  and  be  answered 
ito,  in  any  Court  of  Law  or  Equity  in  this  State;  and  to  make  such  rules  and 
.'-laws  (not  repugnant  and  contrary  to  the  laws  of  the  laud)  for  the  benefit  and 
vantage  of  the  said  corporation,  and  for  the  order,  rule,  good  government  and 
magement  of  said  corporation,  as  shall  from  time  to  time  be  agreed  upon  by  a 
tjority  of  the  members  of  the  said  Society. 

•'And  be  it  further  enacted  by  the  authority  aforesaid,  That  it  shall  and  may  be 
:vful  for  the  said  corporation  hereby  erected  to  take  and  to  hold  to  itself  and  to 
- 1  successors  forever,  any  charitable  donations,  or  devises  of  lauds  and  personal 
<  ate,  and  to  appropriate  the  same  for  the  benefit  of  said  corporation,  in  such 
l  nner  as  may  be  determined  by  a  majority  of  the  members  thereof. 

‘  And  be  it  further  enacted  by  the  authority  aforesaid,  That  the  said  Corporation 


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shall  be,  and  is  hereby  declared  able  and  capable  in  law  to  have,  receive,  enjoy 
possess,  and  retain  all  such  estate,  real  and  personal,  money,  goods,  chattels,  an< 
effects,  whjph  it  is  now  possessed  of,  or  entitled  unto,  or  which  has  already  beet 
given,  devised,  or  bequeathed  to  it,  by  whatever  name  such  devise  or  bequest  ma; 
have  been  made. 

“  And  be  it  further  enacted  by  the  authority  aforesaid.  That  this  Act  shall  bi 
deemed  and  taken  as  a  public  Act.  and  notice  shall  be  taken  thereof  in  all  thi 
Courts  of  Justice  and  elsewhere  in  this  State,  and  it  shall  be  given  in  evidenci 
on  the  trial  of  any  issue  or  cause,  without  special  pleading. 

11  Seventh  day  of  March  Anno  Domini  17>9.” 

It  is  here  seen  that  the  Act  of  1789  created  a  corporation  o 
the  persons  who  were  then,  and  should  hereafter  become  member 
of  the  Society  for  the  relief  of  Elderly  and  Disabled  Ministers 
and  of  the  Widows  and  Orphans  of  the  Clergy  of  the  Independen 
or  Congregational  Church  in  the  State  of  South  Carolina,  and  thei 
successors,  officers  and  members,  as  one  body  corporate,  in  deei 
and  in  name,  “  By  the  name  of  the  Society  for  the  relief  o 
Elderly  and  Disabled  Ministers,  and  of  the  Widows  and  Orphan 
of  the  Clergy  of  the  Independent  or  Congregational  Church  i 
the  State  of  South  Carolina.” 

•  The  Preamble  to  this  Act  recites  that  this  charter  was  grante 
upon  the  petition  of  William  Hollingshead,  Isaac  S.  Keith  an 
Josiah  Smith,  with  sundry  other  members  of  the  Society,  “  wt 
had  taken  into  their  serious  consideration,  the  distressed  situatio 
in  which  Elderly  and  Disabled  Ministers  and  the  Widows  an 
Orphans  of  the  Clergy  of  the  Independent  or  Congregation! 
Churches  were  frequently  placed  and  left,  and  had  therefo 
associated  themselves  together  for  the  charitable  purpose  ; 
establishing  a  fund  for  their  relief.”  It  was  upon  that  stateme 
and  for  that  purpose  alone,  that  the  charter  of  1789  was  applii 
for  by  the  Petitioners,  and  granted  by  the  State  )  from  this  stal 
ment,  it  is  known,  that  Drs.  Hollingshead  and  Keith,  with  t 
Rev.  Mr  Smith  and  others,  became  the  founders  of  this  charit; 
that  they  themselves  either  subscribed  the  funds  necessary  for  the 
purpose,  or  collected  them  from  other  pious  persons,  their  frienc. 
At  all  events  they  and  their  associates  were  at  that  time  the  legll 
owners  of  the  property  or  funds  of  the  Society,  (come  from  wlltl 
quarter  it  may)  they  had  the  entire  control  over  them  and  the  absohbj 
right  to  dispose  of  them  in  such  manner  as  they  deemed  fit.  Vest} 
with  these  rights  both  as  to  the  fund  and  its  disposal,  they  thej 
selves  applied  to  be  incorporated,  that  they  and  their  successors  irf 
have  the  perpetual  right,  as  Trustees  of  their  own  charity,  of  apply:? 
their  own  funds  according  to  the  laws  of  its  foundation.  The  .  l 
of  1789  established  them  by  charter  as  such  a  Corporation,  wit  a 


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erpetual  existence;  with  power  to  purchase  and  dispose  of  estate 
°al  and  personal;  with  power  to  take  and  hold  charitable  donations 
nd  devises  of  land  and  personal  estate,  and  to  appropriate  the 
ame  for  the  benefit  of  the  said  Corporation  and  with  power  to 
njoy,  possess  and  retain  whatsoever  it  was  then  possessed  of  or 
i  any  way  entitled  to.  By  this  Act  of  1789,  the  sole  beneficiaries 
f  the  charity  so  founded  were  the  Elderly  and  Disabled  Ministers 
nd  the  Widows  and  Orphans  of  the  Clergy  of  the  Independent  or 
longregational  Churches  in  the  State  of  South  Carolina.  The 
' ociety  so  incorporated,  became  Visitors  and  Trustees  of  the 
harity.  The  Legislature  by  its  charter  gave  no  donation  in  land 
r  money,  they  only  bestowed  on  an  Association  already  formed, 
nth  a  fund  in  their  possession  and  with  purposes  and  objects 
efore  declared  and  definite,  a  corporate  existence  with  such  privi- 
jges  and  immunitiesas  would  enable  theSociety  to  more  effectually 
romote  their  benevolent  designs,  to  appropriate  their  funds  to 
etter  advantage  for  the  objects  of  their  bounty,  and  to  conduct 
heir  affairs  with  greater  certainty.  For  a  period  of  certainly 
Drty-six  years  and  perhaps  seventy  years,  did  this  Society  exist 
s  it  had  been  called  into  existence,  without  intrusion  or  molesta- 
ion,  dispensing  whenever  an  opportunity  offered,  its  charities 
ccording  to  the  laws  of  its  foundation,  and  it  has  been  proved 
rat  those  laws  were  fully  known  to,  clearly  recognized,  and 
roperly  understood  both  by  the  Society,  (the  Trustees)  and  the 
Circular  Church,  from  1789  until  1834,  when  the  Legislature  by 
s  Act  passed  17th  December,  1834,  repealed  the  Act  of  1789. 

jj  I  f  9 

They  thus  petitioned  :  “  To  the  Honorable  the  President  and  Members  of  the  Senate: 
“The  petition  of  the  members  of  the  Society  for  the  Relief  of  Elderly  and  Dis¬ 
hed  Ministers,  and  of  the  Widows  and  Orphans  of  the  Clergy  of  the  Independent 
■  Congregational  Church  in  the  State  of  South  Carolina,  respectfully  shew  :  That 
the  period  of  their  incorporation,  in  the  year  of  our  Lord  seventeen  hundred 
id  eighty-nine,  and  up  to  a  recent  date,  the  Circular  and  Archdale  Churches 
imposed  but  one  congregation,  under  the  corporate  name  and  style  of  “  The  Inde- 
mdent  or  Congregational  Church  in  the  City  of  Charleston;”  That  in  consc¬ 
ience  of  a  separation  of  said  Churches  into  two  distinct  and  separate  congre- 
tions,  the  Circular  Church  still  retaining  the  original  corporate  name,  and  the 
•chdale  Church  having  since  been  incorporated  by  the  name  and  style  of  “  The 
cond  Independent  or  Congregational  Church  in  the  City  of  Charleston,”  it  has 
come  necessary  for  your  petitioners  to  apply  to  your  Honorable  Body  for  an 
nendment  of  their  charter,  so  that  the  name  of  the  said  Society  shall  be  slightly 
tered,  and  a  discretionary  power  given  to  your  petitioners  to  apply  their  funds 
i  such  charitable,  benevolent,  religious ,  and  other  purposes  as  may  not  be  incom- 
y  ible  with  the  objects  of  the  Society,  and  shall  contribute  more  effectually  to  the 
Lomplishment  of  the  same. 

I 


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“Your  petitioners  therefore  pray  that  the  name  and  style  of  the  Society  be  so 
altered  and  amended  as  to  read  thus:  “The  Society  for  the  Relief  of  Elderly  and 
Disabled  Ministers,  and  of  the  Widows  and  Orphans  of  the  Clergy  of  the  Inde¬ 
pendent  or  Congregational  Church  in  the  City  of  Charleston  and  that  power  be 
given  to  your  petitioners  to  apply  their  funds  discretionarity  to  such  charitable, 
benevolent,  religious,  and  other  purposes  as  may  contribute  to  the  welfare  of  said 
Church  and  Corporation. 

“  And  your  petitioners  will,  as  in  duty  bound,  ever  pray,”  &;c. 

••  An  Acr  to  amend  the  Charter  of  the  Society  for  the  Relief  of  Elderly  and  Disa¬ 
bled  Ministers,  and  of  the  Widows  and  Orphans  of  the  Clergy  of  the  Independent 
or  Congregational  Church,  in  the  State  of  South  Carolina. 

‘ ‘  Sec.  1.  Be  it  enacted  by  the  Honorable  che  Senate  and  House  of  Representa¬ 
tives,  non •  met  and  sitting  in  General  Assembly ,  and  by  the  authority  of  the  same. 
That  the  Act  entitled  “  An  Act  for  incorporating  the  Society  for  the  Relief  of 
Elderly  and  Disabled  Ministers,  and  of  the  Widows  and  Orphans  of  the  Clergy  ol 
the  Independent  or  Congregational  Church,  in  the  State  of  South  Carolina,  rati¬ 
fied  on  the  seventh  day  of  March,  seventeen  hundred  and  eighty-nine  be,  and  the 
same  is  hereby  repealed,  by  and  with  the  consent  of  the  said  corporation. 

“  Sec.  2.  And  be  it  further  enacted  by  the  authority  aforesaid,  That  the 
persons  and  members  of  the  Society  hitherto  known  by  the  name  of  the 
Society  for  the  Relief  of  Elderly  and  Disabled  Ministers,  and  of  the  Widows 
and  Orphans  of  the  Clergy  of  the  Independent  or  Congregational  Church,  in 
the  State  of  South  Carolina,  and  their  successors,  officers  and  members,  shal' 
be  hereafter,  and  they  are  hereby  declared  to  be,  one  body  corporate,  in  deed 
and  in  name,  by  the  name  of  “  The  Society  for  the  Relief  of  Elderly  and  Disabled 
Ministers,  and  of  the  Widows  and  Orphans  of  the  Clergy  of  the  Independent  oi 
Congregational  Church  in  the  City  of  Charleston  and  by  the  said  name,  shall  have 
perpetual  succession  of  officers  and  members,  and  a  common  seal,  with  power  te 
change,  alter,  break,  and  make  new  the  same,  as  often  as  the  said  corporatioi 
shall  judge  expedient;  and  the  said  corporation  and  its  successors,  shall  be  able 
and  capable  in  law,  to  purchase,  hold,  have,  receive,  enjoy,  possess  and  retain  t< 
itself  and  its  successors,  in  perpetuity,  or  for  any  term  of  years,  any  estate  ores 
tatfes,  lands,  tenements,  heriditaments,  of  what  kind  or  nature  whatsoever  ;  am 
to  sell,  alien,  exchange,  devise,  or  lease  the  same,  or  any  part  thereof,  as  it  shal 
think  proper,  and  by  its  said  name,  to  sue  and  be  sued,  implead  and  be  impleaded 
answer  and  be  answered  unto,  in  any  Court  of  Law  or  Equity  in  this  State  ;  am 
to  make  such  rules  and  bye-laws  (not  repugnant  and  contrary  to  the  laws  of  tb 
land)  for  the  benefit  and  advantage  of  the  said  corporation,  as  shall  from  timet' 
time  be  agreed  upon  by  a  majority  of  the  members  of  the  said  Society. 

“  Sec.  3.  And  be  it  further  enacted  by  the  authority  aforesaid.  That  it  shall  an 
may  be  lawful  for  the  said  corporation  hereby  erected,  to  take  and  to  hold  to  itse 
and  to  its  successors  forever,  any  charitable  donations,  or  devises  of  lands  and  pei 
sonal  estates,  and  to  appropriate  the  same,  as  also  all  other  their  funds,  real  an 
personal,  to  such  charitable,  benevolent,  religious,  and  other  purposes,  for  th 
benefit  of  said  corporation,  and  of  the  said  Independent  or  Congregational  Churc 
in  the  City  of  Charleston,  in  such  manner  as  may  be  determined  by  a  majority  (. 
the  members  thereof. 

“Sec.  4.  And  be  it  further  enacted  by  the  authority  aforesaid ,  That  the  sai 
corporation  shall  be,  and  is  hereby  declared  able  and  capable  in  law,  to  have,  r< 
ceive,  enjoy,  possess,  and  retain  all  such  estate,  real  and  personal,  mone 
goods,  chattels,  and  effects,  which  it  is  now  possessed  of,  or  entitled  unto,  or  whit  j 


7 


has  already  been  given,  devised  or  bequeathed  to  it,  by  whatever  name  such  de¬ 
vise  or  bequest  may  have  been  made. 

li  Sec.  5.  And  be  it  farther  enacted  by  the  authority  aforesaid,  That  this  Act 
shall  be,  and  continue  in  force,  for  the  term  of  twenty-one  years,  and  shall  be 
deemed  and  taken  as  a  public  Act. 

f  “In  the  Senate  House,  the  seventeenth  day  of  December ,  in  the  year  of  on r  Lord 

one  thousand  eight  hundred  and  thirty-four ,  and  in  the  fifty-ninth  year  of  the 

Sovereignty  and  Independence  of  the  United  States  of  America .” 

In  this  petition  the  Society  pray  for  an  amendment  of  the  char¬ 
ter  of  1789,  in  these  particulars,  viz  :  so  that  the  name  of  the 
Society  may  be  slightly  altered,  and  that  a  discretionary  power 
may  be  given  to  the  Society  to  apply  their  funds  to  such  charitable, 
benevolent,  religious  and  other  purposes  as  may  not  be  incompati¬ 
ble  with  the  objects  of  the  Society,  and  which  shall  contribute 
more  effectually  to  the  accomplishment  of  the  same.  Idle  recital 
states  that  the  amendment  has  become  necessary  from  a  schism  in 
the  united  congregation  worshipping  at  the  Churches  in  Meeting 
and  Archdale  streets,  and  that  a  division  had  taken  place,  and  the 
Church  in  Archdale  street  had  taken  the  name  of,  “  The  Second 
Independent  or  Congregational  Church,  in  the  City  of  Charleston.” 
The  prayer  of  this  petition  does  not  accord  with  the  recital  and 
the  alleged  causes  for  an  amendment  of  the  charter,  but  pray  that 
a  different  name  may  be  given  to  the  Society,  viz  :  “The  Society 
for  the  Relief  of  Elderly  and  Disabled  Ministers,  and  of  the 
Widows  and  Orphans  of  the  Clergy  of  the  Independent  or  Con¬ 
gregational  Church  in  the  City  of  Charleston,”  “and  that  power  be 
given  to  your  petitioners  to  apply  their  funds  discretionarily  to 
such  charitable,  benevolent,  religious  and  other  purposes  as  may 
contribute  to  the  welfare  of  the  said  Church  and  corporation.  Upon 
this  petition,  the  Act  of  1834  was  enacted.  The  Rubric  recites  it 
to  be  “An  act  to  amend  the  charter  of  the  Society  for  the  Relief 
of  Elderly  and  Disabled  Ministers  and  of  the  Widows  and  Or¬ 
phans  of  the  Clergy  of  the  Independent  or  Congregational  Church 
in  the  State  of  South  Carolina.”  This  Act  has  no  preamble. 

[  Sec.  First  Repeals  the  charter  of  1789,  by  and  with  the  con¬ 
sent  of  the  said  corporation. 

■  Sec.  Second  Incorporates  anew  the  same  persons  and  members 
;which  constituted  the  old  Society  by  the  new  name  of,  “  The  So¬ 
ciety  for  the  Relief  of  Elderly  and  Disabled  Ministers  and  of  the 
Widows  and  Orphans  of  the  Clergy  of  the  Independent  or  Con¬ 
gregational  Church  in  the  City  of  Charleston,”  with  power  to 
purchase  and  to  sell  any  estates,  real  or  pers'onal,  to  make  such 


8 


rules  and  by-laws  (not  repugnant  and  contrary  to  the  laws  of  the 
land)  for  the  benefit  and  advantage  of  the  said  corporation,  as  shall 
from  time  to  time  he  agreed  upon  by  a  majority  of  the  members 
of  the  said  Society. 

Sec.  Third.:  Provides  that  it  shall  be  lawful  “for  the  said  cor¬ 
poration  hereby  erected  to  take  and  hold  to  itself  and  its  successors 
forever,  any  charitable  donations,  or  devises  of  lands  and  personal 
estates,  and  to  appropriate  the  same,  as  also  all  other  their  funds, 
real  and  personal,  to  such  charitable,  benevolent,  religious  and  other 
purposes,  for  the  benefit  of  said  corporation,  and  of  the  said  Indepen¬ 
dent  or  Congregational  Church  in  the  City  of  Charleston,  in  such 
manner  as  may  be  determined  by  a  majority  of  the  members  thereof. 

Sec.  Fourth:  Transfers  the  property  of  the  old  corporation  to 
the  new  one,  to  wit:  “That  the  said  corporation  shall  be  and  is 
hereby  declared  able  and  capable  in  law,  to  have,  receive,  enjoy, 
possess  and  retain  all  such  estate,  real  and  personal,  money,  goods, 
chattels  and  effects,  which  it  is  now  possessed  of  or  entitled  unto,  or 
which  has  already  been  given ,  devised  or  bequeathed  to  it,  by  what¬ 
ever  name  such  devise  or  bequest  may  have  been  made.” 

Sec.  Fifth:  Limits  the  charter  to  a  term  of  twenty-one  years, 
and  declares  this  act  a  public  act.  Now,  if  the  Legislature  can 
make  such  changes  in  the  vested  rights  of  individuals  or  corpora¬ 
tions,  it  can  take  away  those  rights  altogether.  The  power  which 
can  do  a  part  can  accomplish  the  whole.  The  decree  on  the  ori-  i 
ginal  bill  decides  the  following  points  in  the  general  cause,  and  a 
statement  of  them  here  will  aid  the  argument. 

Attorney  Gen’t,  I.  That  a  charity  may  be  created  not  only  for  the  benefit  of 
The  clergy  so.  those  who  may  be  in  existence  (communities  or  individuals,)  but 
s Rich. Eq.p.  190.  a|SQ  for  (/wse  wh0  may  afterwards  come  into  existence  or  qualify  ! 
themselves  to  become  objects  of  the  bounty. 

II.  That  this  Charity  was  founded  on  charter,  for  the  Elderly  j 
and  Disabled  Ministers  and  of  the  Widows  and  Orphans  of  the 
Clergy  of  the  Independent  or  Congregational  Church  in  the  State  » 
of  South  Carolina,  as  a  denomination. 

III.  That  the  Act  of  1789  is  the  foundation  of  the  Charity,  and 
was  not  repealed  by  the  Act  of  1834,  but  amended  so  as  to  change  , 
the  corporate  name  of  the  Society,  enlarge  the  powers  of  the  trus¬ 
tees,  and  to  limit  its  corporate  existence  to  the  term  of  twenty-one 
years  but  not  to  limit  its  benefits  to  the  Church  in  the  City  of  Charles-  * 
ton  alone. 

IV.  That  the  Wappetaw  Church  is  an  Independent  or  Congre-  I 


9 


gational  Church  in  the  State  of  South  Carolina,  and  within  the 
scope  of  this  Charity. 

V.  That  this  Court  has  jurisdiction  to  entertain  this  information 
at  the  relation  of  the  Wappetaw  Church;  and  that  the  relators 
have  such  an  interest  as  to  entitle  them  to  be  a  party  to  these  pro¬ 
ceedings. 

These  points,  although  decided,  have  been  remade  in  the  defend¬ 
ant’s  answers;  and  although  I  do  not  entertain  the  idea  that  they 
will  be  re-opened  and  reviewed  under  these  proceedings,  I  will,  in 
the  course  of  this  argument,  notice  them  in  a  general  way,  as  they 
more  or  less  affect  the  important  issue. 

The  general  positions  taken  by  the  defendants,  and  upon  which 
they  chiefly  rely  to  sustain  their  defence  to  the  relator’s  complaint, 
are  these : 

First.  That  the  Legislature  can  constitutionally  annul  or  modify 
the  charter  of  an  eleemosynary  corporation  with  its  own  consent, 
so  as  to  enlarge  the  scope  of  its  charity. 

Secondly.  That  even  if  the  Legislature  had  not  the  power,  con¬ 
stitutionally,  to  amend  the  charter  of  the  said  Society,  as  it  has 
done  by  the  Act  of  1834,  yet  the  Society  having  kept  within  the 
purview  of  that  act  in  the  appropriations  complained  of — that  the 
State  is  estopped  from  arraigning  the  said  Society  through  her 
Attorney  General,  or  on  the  relation  of  a  relator,  for  a  breach  of 
trust. 

Thirdly.  That  no  one  is  competent  to  arraign  this  Society,  or 
these  defendants,  in  this  Court,  for  a  breach  of  trust  except  some 
founder,  donor,  or  beneficiary,  entitled  to  or  interested  to  make  the 
question. 

Fourthly.  That  the  Act  of  1834  is  constitutional  and  legal,  and 
not  within  the  purview  of  the  provisions  of  either  the  State  or 
United  States  Constitution  prohibiting  the  passing  of  laws  impair¬ 
ing  the  obligation  of  contracts. 

Fifthly.  That  the  said  Society  being,  by  virtue  of  its  incorpora¬ 
tion,  in  law  the  assignee  of  all  persons,  dead  or  living,  who  stand 
to  it  in  the  relation  of  founder  or  donor,  and  the  only  contracting 
party  with  the  State  whose  consent  was  legally  and  constitution¬ 
ally  necessary  to  a  repeal  or  amendment  of  the  charter  of  the  said 
Society. 

With  this  opinion  as  to  their  legal  rights,  the  Society  applied 
to  the  Legislature  of  South  Carolina  for  a  repeal  of  theJict  of  1789, 
and  upon  that  application  the  Charter  of  1789  was  repealed,  and 


10 


the  Charter  of  1834  granted  in  lieu  thereof.  If  the  diet  of  1834  is 
constitutional  and  valid,  the  old  corporation  created  by  the  Charter 
of  1789  has  been  abolished,  and  a  new  corporation  created  in  its 
stead;  and  to  this  new  corporation  the  Legislature  has  transferred 
all  the  property,  privileges  and  immunities  of  the  old.  It  has 
been  said  that  these  corporations  are  the  same,  but  that  the  cor¬ 
poration  created  by  the  Act  in  1834  is  distinct  from  the  corporation 
created  by  the  Act  of  1789,  is  easily  ascertained  from  the  fact, 
that  they  are  different  in  every  essential  necessary  to  the  legal 
existence  of  a  corporation.  The  essentials  by  which  a  corporation 
is  recognized  in  law  as  one  body  politic,  are  its  name,  powers, 
rights  and  duties.  Although  in  this  case  the  same  individuals 
were  re-incorporated,  the  two  corporations  have  different  names, 
different  powers,  different  uses,  and  different  beneficiaries.  Before 
the  Corporation  of  1834  came  into  being,  the  Corporation  of  1789 
had  ceased  to  exist.  The  Act  of  1834  itself  declares  the  Act  of 
1789  to  be  repealed,  and  proceeding  upon  that  view  of  the  case — 
that  the  old  corporation  was  at  an  end,  and  that  all  its  functions 
had  ceased — incorporates  the  new  Society,  transfers  to  it  all  the 
property  of  the  old  Society,  and  gives  them  power  to  use  the  funds 
so  transferred  for  the  benefit  of  objects  foreign  to  the  foundation 
of  1789.  Although  it  has  been  decided  that  the  Act  of  1834  was 
an  amendment  of  the  Act  of  1789,  the  effect  of  which  was  to 
change  the  corporate  name  of  the  Society,  enlarge  the  powers, 
and  limit  the  charter  to  twenty-one  years;  but  j lot  to  limit  its  bene¬ 
fits  to  the  Church  in  the  city  of  Charleston  alone.  It  is  manifest 
that  this  act  does  impair  the  rights,  destroy  the  vested  uses  of  the  bene¬ 
ficiaries,  the  cestui  que  trusts ,  and  invade  the  property  and  powers 
of  the  Society  under  its  original  charter  as  a  corporation,  and  as 
the  trustees  of  a  charity.  There  can  be  no  question  that,  under 
the  Charter  of  1789,  the  Society  became  the  legal  owners  of  all 
the  property  acquired  under  that  charter,  and  so  far  as  to  pass  the 
legal  estate,  were  the  assignees  of  the  donors  or  founders;  and 
neither  is  it  to  be  questioned  that  the  ownership  in  the  property, 
and  the  acquiring  the  legal  estate,  was  coupled  with  a  trust  for 
the  use  of  the  beneficiaries,  and  for  that  purpose  alone,  between 
which  and  any  ordinary  assignment  for  the  benefit  of  creditors,  or 
for  the  issue  of  a  marriage  under  a  deed  of  marriage  settlement, 
there  is  no  difference,  in  law  or  in  equity. 

77<e  Act  of  1834  admits  to  the  full  benefit  of  the  whole  trust 
fund,  a  beneficiary  in  no  way  mentioned  or  alluded  to  in  the  charter 


11 


of  1789,  the  Circular  Church  ;  and  it  does  more  than  that:  it  gives 
the  Society  the  power,  whenever  a  vote  of  a  majority  of  its  mem¬ 
bers  could  be  obtained,  to  transfer  the  entire  fund  of  the  Society 
to  the  Circular  Church,  and  when  its  limited  charter  shall  ex¬ 
pire,  to  make  no  application  for  a  recharter,  and  thus  to  allow  this 
noble  charity  to  cease  to  exist. 

If  the  beneficiaries  under  the  charter  of  1789,  have  any  legal 
rights  and  interest  in  this  charity,  and  it  has  been  decided  that 
they  have;  this  thrusting  the  Circular  Church  upon  them  as  a 
beneficiary;  this  compelling  them  to  admit  the  Circular  Church 
to  the  full  benefit  of  their  property  against  their  will  and  without 
their  consent,  by  the  legislature,  is  a  violation  of  those  rights  as 
complete  and  entire,  as  if  they  had  admitted  the  Charleston  Theatre 
Company  as  a  beneficiary.  The  act  changes  the  whole  corpora¬ 
tion  ;  it  changes  corporate  powers  and  franchises,  and  transfers 
corporate  property.  It  changes  the  name  of  the  corporation  and 
it  creates  new  beneficiaries.  The  Act  of  1789  had  one  class  of 
beneficiaries,  the  Elderly  and  Disabled  Ministers  and  the  Widows 
and  Orphans  of  the  Clergy  of  the  Independent  or  Congregational 
Church  in  the  State  of  South  Carolina.  The  Act  of  1834  abolishes 
that  class  and  substitutes  in  their  place  the  Circular  Church,  and 
the  Circular  Church  alone,  for  by  that  act  a  majority  of  the  mem¬ 
bers  of  the  Society  have  the  power  to  appropriate  the  funds  of  the 
Society  to  the  benefit  of  the  church,  without  any  limit  or  restriction, 
and  they,  the  Society,  claim  that  the  only  ministers  entitled  to 
relief  from  the  funds  are  the  ministers  of  the  Church  in  Charles¬ 
ton,  in  exclusion  of  the  other  churches  of  like  faith  in  the  State.  It 
is  to  this  corporation  that  the  Legislature  and  the  Society  have 
surrendered  the  funds  collected  by  Drs.  Hollingshead,  Keith  and 
others,  the  original  donors,  in  utter  disregard  of  the  uses  for  which 
they  were  originally  intended,  and  in  direct  violation  of  the  laws 
of  its  foundation. 

It  will  be  contended  by  the  relators  that  the  act  of  1834  is  un¬ 
constitutional  and  void. 

First.  Because  it  is  repugnant  to  the  constitution  of  the  State 
of  South  Carolina,  and  of  the  United  States,  inasmuch  as  it  im¬ 
pairs  the  obligation  of  a  contract.  And  secondly.  Because  it 
denudes  a  trust,  and  a  trustee  cannot  consent  to  surrender  his  trust 
or  destroy  the  trust  property,  or  apply  it  to  other  uses,  unless  per¬ 
mitted  in  the  original  trust  deed,  or  by  order  of  the  Court  of  Chan¬ 
cery,  or  with  the  consent  of  all  of  the  cestui  que  trusts.  To  fully 


12 


1  Black.  467. 


understand  this  case,  it  is  necessary  that  we  inquire  into  the  nature 
and  character  of  the  corporation  created  by  the  act  of  1789;  for 
there  is  no  question  more  clearly  settled  than  that  the  Legislature 
has  more  power  over  some  corporations  than  others,  and  that  there 
are  many  kinds  of  corporations.  A  municipal  corporation  may  be 
changed  as  convenience  may  require,  provided  the  rights  of  private 
property  are  respected  and  protected,  which  is  not  the  case  with 
eleemosynary  corporations.  The  act  of  1789,  created  a  lay  eleemosy¬ 
nary  corporation.  It  established  a  private  charity,  founded  by 
private  individuals,  upon  a  charter  obtained  at  their  own  request 
and  upon  their  own  petition,  setting  forth  their  own  will  and  for 
the  purpose  of  the  better  and  more  lasting  management  of  their  own 
bounty  according  to  that  will.  “The  eleemosynary  sort  of  corpora¬ 
tions  are  such  as  are  constituted  for  the  perpetual  distribution  of  the 
free  alms  or  the  bounty  of  the  founder  of  them,  to  such  persons  as  he 
has  directed  ;  of  this  are  all  hospitals  for  the  poor  sick  and  impo¬ 
tent,  and  all  colleges,  both  in  our  universities  and  out  of  them.” 
This  Society  is,  then,  a  private  eleemosynary  corporation  for  the 
management  of  a  private  fund,  according  to  the  will  of  the  found¬ 
ers  or  donors.  The  charter  makes  the  trust  perpetual,  but  does 
not  change  the  nature  of  the  charity.  In  such  cases,  an  associa¬ 
tion  of  benevolent  persons  desire  to  give  a  portion  of  their  sub¬ 
stance  to  some  particular  charitable  purpose,  and  they  wish  that 
their  bounty  may  be  continued  long  after  they  shall  have  passed 
away.  Sensible  of  the  uncertainty  of  individual  life,  they  neither 
leave  this  object  to  their  heirs  or  devisees,  nor  do  they  appoint 
trustees  by  a  deed,  but  they  turn  to  what,  in  all  human  probability 
is  more  certain  and  lasting,  to  that  artificial  being  called  a  corpo¬ 
ration,  the  offspring  of  the  law,  and  invoke  the  aid  of  the  State  to 
perpetuate  their  beneficent  intention  by  granting  a  charter,  under 
which  that  offspring  of  the  law  would  be  their  trustee  to  perpet¬ 
uate  their  charity,  and  to  dispense  their  bounty  to  such  objects  as 
they  have  therein  designated  for  all  time.  This  charter  is  effected 
either  by  incorporating  the  persons  for  whose  benefit  the  fund  is 
given,  or  those  who  are  to  be  trustees  of  the  charity,  or,  as  in  this 
ease,  the  donors  themselves.  The  general  law  regulating  charities 
is :  That  those  who  give  the  revenues  are  the  founders.  The 
charter  expressing  the  will  of  the  donors  is  the  foundation.  The 
corporators  having  the  supervision  of  the  charity,  are  its  visitors, 
and  managing  the  revenues,  are  the  trustees.  Those  for  whose 
benefit  the  funds  are  given,  are  the  beneficiaries,  cestui  que  trusts, 
and  have  of  right  certain  important  uses  and  equitable  interests  in 


IB 


the  funds  of  the  Charity,  under  and  by  virtue  of  the  charter.  The 
leading  case  in  England  is  the  Attorney  General  vs.  the  Gover¬ 
nors  of  the  Foundling  Hospital;  and  the  leading  American  case,  2Tesey>  Jr->  42< 
the  Dartmouth  College  case.  It  has  been  well  said  “  that  in  early  4  Wheaton,  618. 
times  it  became  a  maxim,  that  he  who  gave  the  property  might 
regulate  it  in  future.”  Although  the  charter  proceeds  from  the 
State,  it  is  considered  as  the  will  of  the  donors;  it  is  granted  upon 
their  application ;  it  is  imposed  by  them  upon  those  who  are  to 
succeed  them  in  the  management,  as  the  law  of  its  foundation  for 
all  future  time.  The  State  granting  the  charter  and  not  furnishing 
the  fund,  is  in  no  way  the  founder.  “The  gift  of  the  revenues  is 
the  foundation  ” — Phillips  vs.  Berry,  1  Blackstone  480,  Commen¬ 
taries. 

“  Where  there  is  a  charter  vesting  proper  powers  of  government  ^  com  ^480 
in  Trustees  or  Governors,  they  are  visitors;  and  there  is  no  control 
in  anybody  else,  except  only  that  the  Court  of  Equity  or  of  Law  1  VGree’n 72 
will  interfere  so  far  as  to  preserve  the  revenues  and  prevent  the  Rutherford, 
perversion  of  the  funds  and  keep  the  visitors  in  their  prescribed 
bounds.”  Such  are  eleemosynary  corporations.  The  revenues  are 
private  funds,  and  there  are  generally  many  donors  who  obtain  a 
charter  comprising  the  names  of  all  or  some  of  them  with  a  right 
of  succession  ;  and  in  that  manner,  was  this  Society  established  as 
a  body  corporate  and  it  is  those  very  funds  which  were  given  or 
collected  by  Drs.  Hollingshead,  Keith,  Smith  and  associates  that 
the  Legislature  of  South  Carolina  have  taken  away  from  the  ob¬ 
jects  of  their  Bounty  and  given  to  the  Circular  Church,  When 
Drs.  Hollingshead  and  Keith  collected  these  funds  and  established 
this  charity  for  the  Benefit ,  the  sole  Benefit  of  the  Elderly  and  Dis¬ 
abled  Ministers  and  of  the  Widows  and  Orphans  of  the  Clergy  of 
the  Independent  or  Congregational  Church  in  the  State  of  South 
Carolina  and  secured  it  to  them  in  perpetuity  by  a  charter  solemnly 
granted  to  them  by  the  State  of  South  Carolina,  they  nor  any  one 
else  at  that  time  would  have  supposed,  That  that  charter  was  at 
the  pleasure  of  the  corporators,  and  that  the  corporators  could  at  any 
time  upon  an  application  to  the  Legislature  have  it  repealed  upon 
surrendering  their  trusts  and  have  the  funds  applied  to  other  uses 
and  for  other  beneficiaries.  They  could  never  have  believed 
that  that  charter  secured  no  inviolable  legal  rights  to  their 
beneficiaries ;  or  they  would  have  confided  their  trust  in  their 
heirs,  or  in  some  other  persons  in  whom  they  had  a  personal 
confidence,  or  they  would  have  left  it  in  hands  of  this  Hon¬ 
orable  Court,  which  never  permits  a  trust  to  fail  for  the  want 


14 


of  a  Trustee,  and  which  has  repudiated  the  cy  pres  doctrine  as  it 
2  Rich  Equity  exists  in  England.  The  Attorney  General  vs.  Jolly.  They  never 
could  have  believed  that  there  existed  any  legal  right  or  power,  in 
the  very  visitors  that  they  themselves  had  appointed,  to  destroy  (heir 
charity  and  give  their  funds  to  the  Circular  Church.  If  such  had 
been  the  case,  they  certainly  would  have  given  their  funds  to  that 
corporation  directly  and  superceded  any  necessity  for  the  charter 
of  1789.  The  individual  rights  of  the  beneficiaries  in  all  such 
charities  as  this,  are  always  uncertain,  for  no  one  can  tell  who  will 
be  an  individual  beneficiary  until  one  actually  exists,  but  as  a  class 
(descriptio  personarum)  they  have  important,  fixed  and  certain 
rights  and  interest  in  the  revenues  of  the  charity,  for  although  it 
may  be  impossible  to  tell  what  individual  minister  will  be  entitled 
to  the  uses  of  the  charity,  all  ministers  of  those  churches  have  an 
equitable  interest  in  the  fund,  for  as  soon  as  there  is  a  disabled 
minister  he  is  entitled  of  right,  secured  by  charter,  to  be  a  beneficiary. 
This  uncertainty  is  of  the  very  nature  of  charity  ;  as  soon  as  it  loses 
that  essential,  it  ceases  to  be  benevolence  and  becomes  a  common 
gift,  a  gratification  of  feeling,  but  not  that  benevolence  which  pro¬ 
ceeds  from  love  to  humanity.  In  eleemosynary  corporations,  such 
as  we  have  described,  the  beneficiary,  whether  in  existence  or 
not,  is  entitled  to  the  uses.  It  is  one  of  the  general  laws  of  trusts 
that  a  fund  may  be  created  or  an  estate  conveyed  for  the  use  and 
benefit  of  persons  not  in  being  at  the  time  of  the  conveyance. 
“Such  is  the  case  in  marriage  settlements  with  power  to  devise” 
Binney.  vidai  or  appoint.  “Where  is  the  estate  beyond  the  life  until  the  power 
Girard.  is  executed.  It  rests  in  no  one.”  A  charitable  use  is  only  a  pow¬ 
er  of  appointment,  and  the  disabled  ministers  have  a  good  right  to 
the  use.  If  the  Trustees  should  refuse  any  proper  beneficiary, 
Chancery  would  compel  them  to  carry  out  their  trust;  as  to  that 
principle,  see  3d  Pere.  Williams  146. 

The  time  when  the  cestui  que  trust  shall  take  is  fixed.  When¬ 
ever  they  become  old  and  disabled,  and  whenever  there  are  widows 
and  orphans  of  such  elderly  and  disabled  clergy.  It  is  true,  that 
no  one  has  a  right  to  claim  until  they  fall  into  that  description  of 
person;  but  that  is  so  with  many  other  trusts  of  private  property; 
for  instance,  where  there  is  a  power  to  name  some  one  of  kin  to 
take,  a  remote  relation  may  be  selected.  “  Uncertainty  is  indis- 
Binney.  pensable  to  all  charities.  If  any  one  has  a  right  to  claim  by  law, 
it  ceases  to  be  a  charity.”  The  property  of  this  Society  is  private 
property,  vested  in  the  corporators  by  the  charter  as  Trustees,  to 


15 


be  administered  by  them  according  to  the  will  of  the  donors,  as 
expressed  in  the  charter,  and  for  the  use  of  the  beneficiaries 
therein  appointed.  The  common  law  of  the  land,  gives  every  one 
aright  to  dispose  of  their  property  in  any  manner  they  may  select, 
not  contrary  to  the  laws  of  the  land  ;  and  when  persons  have  dis¬ 
posed  of  their  property  for  benevolent  purposes,  and  the  State  has 
invited  them  so  to  do,  by  giving  perpetuity  to  their  scheme,  under 
its  charter  or  grant,  in  strict  conformity  with  their  will  and 
pleasure  as  donors,  “to  rescind  that  contract  and  seize  on  the 
property  is  not  law,  hut  violence.”  When  this  Association  ap¬ 
plied  to  the  Legislature  for  a  charter,  it  was  then  for  the  State  to 
say  whether  and  upon  what  terms,  it  would  grant  them  the  charter; 
but  when  once  granted,  the  Legislature  had  no  more  power  and 
control  over  the  matter,  and  the  charter  became  a  constitutional 
right,  sacred  and  inviolable,  until  forfeited.  I  do  not  suppose  that 
any  one  would  assert  the  doctrine,  that  this  Court,  a  co-ordinate 
branch  of  our  government,  could  apply  the  funds  of  this  charity 
contrary  to  the  foundation,  or  do  any  act  by  which  the  revenues 
were  surrendered  and  destroyed.  I  take  it  to  be  taw,  that  there  is 
no  difference  whether  the  trust  be  created  by  deed,  will,  or  by 
charter;  that  the  trust  when  created,  is  protected  by  the  Con¬ 
stitution  from  all  invasion  by  either  the  Legislature  or  Judicial 
branches  of  the  government.  The  charter  does  not  change  the 
nature  of  the  charity.  In  the  Attorney  General  vs.  Pearce,  it  was 
held  “that  the  Crown  cannot  make  a  charity  more  less  public,  but 
only  more  permanent  than  it  would  otherwise  be.”  The  object 
of  a  charter  and  of  endowing  it,  is  to  keep  its  property,  private 
property,  and  clothe  it  with  all  the  security  of  private  property. 
The  intent  is,  that  there  should  be  a  legal  private  ownership,  which 
would  maintain  and  protect  the  property  for  the  benefit  of  those 
for  whose  use  it  was  designed.  The  Legislature  of  South  Caro¬ 
lina,  by  the  Act  of  1834,  has  exercised  the  power  of  controlling 
this  fund.  They  recalled  the  old  charter  and  granted  a  new  one ; 
they  have  taken  the  revenues  from  the  old  beneficiaries  and  given 
them  to  the  new. 

I  have  shown  the  nature  and  character  of  this  Charity,  and  that 
the  trustees  possessed  vested  rights,  privileges  and  immunities, 
coupled  with  sacred  trusts,  and  that  the  beneficiaries  have  also 
important  interests  and  rights  under  the  charter  of  1789;  and  that 
those  rights,  privileges  and  immunities,  once  lawfully  obtained,  are 
as  inviolable  as  any  other  right  of  property. 


Webster. 


2  Atk.87. 


16 


If  such  he  the  true  nature  of  the  charter  and  of  the  rights  of  the 
respective  parties  to  it,  the  Act  of  1834  infringes  the  second  sec¬ 
tion  of  the  ninth  article  of  the  Constitution  of  the  State  of  Soulh 
Carolina,  which  says,  “  That  no  freeman  of  this  State  shall  be 
taken,  or  imprisoned,  or  disseized  of  his  freehold,  liberties  or  privi¬ 
leges,  or  outlawed,  or  exiled,  or  in  any  manner  destroyed  or  de¬ 
prived  of  his  life,  liberty  or  property,  but  by  the  judgment  of  his 
peers,  or  by  the  laws  of  the  land.  Nor  shall  any  bill  of  attainder, 
ex  post  facto  law,  or  law  impairing  the  obligation  of  contracts,  ever 
be  passed  by  the  Legislature  of  this  State.”  ,The  beneficiaries, 
under  the  Charter  of  1789,  had  legal  rights  and  equitable  interests 
in  the  funds  of  the  Society.  They  had  acquired  property,  or 
rather  the  uses  of  property,  under  the  charter.  The  charter  was 
a  grant  by  the  State  in  their  behalf,  and  they  were  just  as  much 
entitled  to  the  uses  and  benefits  derived  from  it  as  property,  as  any 
other  property  they  might  have;  or  if  the  grant  had  comprehended 
land,  instead  of  uses  under  a  trust.  The  Act  of  1834  recalls  the 
Charter  of  1789,  deprives  these  beneficiaries  of  all  their  rights  of 
property,  privileges  and  immunities  under  it,  and  appropriates  the 
funds  to  new  uses  and  for  new  beneficiaries.  The  beneficiaries 
cannot  now  enjoy  the  benefits  which  were  originally  intended  for 
them  by  the  founders  of  the  Charity.  The  Act  of  1834  has  placed  it 
in  the  power  of  a  majority'  of  the  new  corporation  to  appropriate 
the  entire  fund  to  the  Circular  Church  and  its  pastors  :  by  which 
all  the  othe*r  Churches  are  deprived  of  their  rights.  The  frsl  part 
of  the  third  section  of  the  ninth  article  says:  That  no  freeman  shall 
be  deprived  of  his  property  but  by  the  judgment  of  his  peers  or 
by'  the  laws  of  the  land.  Now  this  Act  of  1834  deprives  all  the 
other  Independent  or  Congregational  Churches  now  in  the  State, 
or  to  be  hereafter  in  the  State,  of  their  property  in  these  funds, 
without  a  judgment  by  their  peers  or  by  the  laws  of  the  land.  I 
do  not  presume  that  any'  one  will  deny'  that  the  right  to  the  uses 
of  or  in  the  funds  granted  by  the  charter  to  the  cestui  que  trusts, 
are  property,  and  as  much  so  as  that  bestowed  on  any  other  cestui 
que  trusts  by  a  deed  or  will,  individuals  or  corporations.  By  this 
act  the  Legislature  has  declared  that  the  old  charter  was  forfeited, 
and  has  resumed  its  grant  once  granted.  It  has  done  so  without 
a  trial;  no  judgment  of  the  peers  had  been  pronounced  upon  it. 
The  parties  have  been  deprived  of  their  property'.  This  is  a 
judicial  act,  only'  to  be  performed  constitutionally  by  a  co-ordinate 
branch  of  the  Government.  It  is  not  in  the  power  of  the  Legis- 


17 


lalure  to  do  it;  and  in  this  case  they  have  even  gone  further: 
they  have  not  only  deprived  these  parties  of  their  property,  but 
they  have  given  it  to  others.  If  the  constitution  means  anything 
when  it  says  that  no  one  shall  be  deprived  of  his  property  with¬ 
out  a  judgment  of  his  peers,  this  Act  is  a  violation  of  that  part  of 
our  solemn  compact,  which  requires  that  all  such  questions  are  to 
be  tried  by  the  laws  of  the  land.  Now,  is  this  Act  within  the 
spirit  and  letter  of  our  constitution  as  a  law  of  the  land? — to  ascer¬ 
tain  which,  we  must  see  what  are  laws  of  the  land. 

First.  “  It  is  a  rule,  not  a  transient  sudden  order  from  a  superior 
to,  or  concerning  a  particular  person,  but  something  permanent, 
uniform  and  universal;  therefore  a  particular  Act  of  the  Legisla¬ 
ture  to  confiscate  the  goods  of  Titus,  or  to  attaint  him  of  treason, 
does  not  enter  into  the  idea  of  a  municipal  law;  for  the  operation 
of  this  act  is  spent  upon  Titus  only,  and  has  no  relation  to  the 
community  in  general.”  Mr.  Webster,  in  his  Dartmouth  College 
speech,  says,  that  “Lord  Coke  is  equally  decisive  and  emphatic, 
citing  and  commenting  on  the  celebrated  29th  chapter  of  Magna 
Cliarta,  says,  ‘no  man  shall  be  disseized  out,  unless  it  be  by  the 
lawful  judgment,  that  is,  verdict  of  equals,  or  by  the  law  of  the  land, 
that  is,  (to  speak  at  once  for  all,)  by  the  due  course  and  process  of 
law.’”  We  here  see  from  these  great  authorities  what  is  meant 
by  the  law  of  the  land — that  it  means  due  course  and  process  of  law — 
that  is,  the  general  law.  The  law  which  is  already  known  and 
established,  and  is  applicable  to  every  individual  in  the  State  ; 
a  law  which  proceeds  upon  notice,  hears  all  parties  in  interest 
upon  the  trial,  and  pronounces  its  judgment  after  a  fuli  trial, 
That  is  the  meaning  in  the  Constitution,  when  it  says  by  the  laws 
of  that  land,  and  that  is  the  meaning  when  it  says  that  no  freeman 
shall  be  deprived  of  his  property,  but  by  the  laws  of  the  land,  and 
that  every  freeman  shall  hold  his  property  protected  by  the  gene¬ 
ral  laws  which  govern  the  land.  If  Lord  Coke,  if  Mr.  Webster, 
is  right,  if  the  Supreme  Court  of  the  United  States  is  right, 
“every  thing  which  may  pass  under  the  form  of  an  enactment  is 
not  therefore  to  be  considered  the  law  of  the  land.  If  this  were  so, 
acts  of  attainder,  bills  of  pains  and  penalties,  acts  of  confiscation, 
acts  reversing  judgments,  and  acts  directly  transferring  one  man’s 
estate  to  another,  legislative  judgments,  decrees  and  forfeitures, 
in  all  possible  forms  would  be  the  law  of  the  land.”  Such  con¬ 
struction  would  render  the  Constitution  a  dead  letter,  and  would 
establi sh  and  concentrate  all  the  powers  of  the  government  in  one 
2 


i 


1  Black.  44. 


Co.  Ins.  46. 


Webster. 


18 


of  its  branches.  We  would  have  no  permanent  laws  to  live  under,- 
and  every  man’s  life  and  property  would  be  subject  to  the  preju¬ 
dices  or  enmities  of  a  majority.  The  Judiciary  would  cease  to 
exist  but  in  name,  and  the  Judges  would  no  longer  declare  the  law 
and  administer  the  law,  but  they  would  only  declare  what  the  Legis¬ 
lature  had  enacted.  We  will  now  ask  the  question,  has  the  charter 
of  1789  been  taken  away,  and  have  the  cestui  que  trusts  lost  their 
rights  and  interests  under  it  according  to  the  laws  of  the  land  ? 
Even  if  this  could  be  made  to  appear,  would  the  Legisfature  have 
the  right  to  give  the  funds  to  others,  being  charitable  funds  which 
did  not  belong  to  them,  when  they  were  appropriated  by  them  under 
the  Act  of  1834,  and  which  never  did  belong  to  them  at  any  time, 
and  which  was  secured  by  their  previous  charter  expressly  against 
the  State  forever?  There  could  be.  but  one  answer  to  the  ques¬ 
tion — that  there  has  been  no  forfeiture  or  misuse.  There  has  been 
no  trial,  no  judgment,  no  proceeding,  according  to  the  laws  of 
the  land,  and  yet  the  Act  of  1789,  a  charter,  a  grant  from  the  State, 
solemnly  granted,  under  which  the  power  to  hold  property  has 
been  acquired,  and  the  right  to  enjoy  property  given,  has  been  re¬ 
called,  repealed,  and  a  new  grant  issued.  It  has  been  contended 
that  the  Act  of  1834  does  not  repeal  the  Act  of  1789.  I  think  it  does; 
but  if  it  does  not,  it  essentially  impairs  it,  and  no  one  will  say  but 
that  if  the  Legislature  can  lawfully  do  what  it  has  done,  it  may 
do  whatever  it  may  choose  in  relation  to  the  corporation,  its  funds, 
and  its  beneficiaries.  If  then  the  Society,  established  by  the  Act 
of  1789,  is  a  lay  eleemosynary  corporation,  a  private  charity,  its 
property,  private  property,  and  if  the  corporation  are  trustees  and 
take  a  legal  title  to  hold  the  property  for  the  benefit  of  the  cestui 
que  trusts,  and  if  the  cestui  que  trusts  have  any  vested  rights  and 
equitable  interests  in  the  funds  and  property  of  the  Society,  secured 
by  that  charier,  (1789,)  this  act  has  violated  that  property,  has 
taken  away  those  vested  rights  and  equitable  interests.  In  either 
way  they  may  be  regarded,  for  in  both  cases  they  are  entitled  to 
the  protection  of  this  Court.  It  denies  the  cestui  que  trust  the  right 
to  the  protection  of  the  law  and  of  this  Court  to  compel  the  trus¬ 
tees  to  a  faithful  execution  of  the  trust,  and  to  enforce  the  will  of 
the  donors.  I  think  it  is  admitted  law,  that  the  State,  by  its  Courts 
of  Law  or  Equity  have  the  power  to  enforce  the  will  of  the  do¬ 
nors,  and  to  compel  a  faithful  execution  of  the  trust.  That  they 
have  also  the  power  to  declare  a  forfeiture  for  nonuses  or  misuses, 
and  under  the  Constitution  of  the  State,  there  is  no  lawful  power 


19 


anywhere  else  which  can  deprive  the  trustees  of  their  rights  and 
interest;  and  in  these  respects  the  Act  of  1834  is  void,  inasmuch 
as  it  is  against  the  Constitution  of  the  State  of  South  Carolina. 

The  relators  will  further  contend,  the  Act  in  questio'n  is  repug¬ 
nant  to  the  last  clause  in  the  same  article  of  the  Constitution  of 
this  State,  and  to  the  10th  section  of  the  first  article  of  the  Consti¬ 
tution  of  the  United  States.  The  material  words  in  the  State 
Constitution  are  as  follows  :  “  Nor  shall  any  bill  of  attainder  ex  post 
facto  law,  or  law  impairing  the  obligation  of  contracts,  ever  be 
passed  by  the  Legislature  of  the  State,”  and  in  the  Constitution  of 
the  United  States.  “No  State  shall  pass  any  bill  of  attainder 
ex  post  facto  law,  or  law  impairing  the  obligation  of  contracts.” 

The  important  words  in  both  Constitutions  are  the  same,  showing 
that  as  far  as  this  State  was  concerned,  both  in  her  Federal  and 
State  governments,  that  that  principle  of  sound  legislation  was 
deemed  essential  to  her  social  compact.  To  be  secure  in  person 
and  property,  to  have  that  security  established  upon  fixed  prin¬ 
ciples  and  governed  by  the  laws  of  the  land,  is  the  foundation  of 
Society,  and  the  great  constitutional  bulwark  of  American  liberty. 

That  the  diet  of  1789  is  a  grant ,  and  that  the  grant  is  a  contract, 
and  that  a  contract  of  that  kind  is  one,  that  is,  within  the  meaning 
of  both  the  State  and  the  United  States  Constitutions,  are  ques¬ 
tions  which  have  been  fully  decided  in  the  Dartmouth  College 
case,  and  it  would  be  presumption  to  say  anything  upon  that  head; 
so  I  will  regard  those  propositions  as  settled  law,  and  pass  to  the 
question,  if  the  Act  of  1789  be  a  contract,  does  the  law  of  1834  im¬ 
pair  its  obligations  ?  What  is  a  contract? — “a  transaction  between  Powsii.p.e. 
two  or  more  persons,  in  which  each  party  comes  under  an  obliga¬ 
tion  to  the  other,  and  each  reciprocally  acquires  a  right  to  what¬ 
ever  is  promised  by  the  other.”  A  corporation  is  defined  by 
Blackstone,  “  to  be  a  franchise.”  To  this  grant  there  are  three  2  B1’k-  Com- 37- 
parties,  the  State,  the  persons  for  whose  benefit  it  is  created,  or 
the  Corporation  as  Trustees  for  them,  and  the  Donors;  the  validity 
of  which,  depends  upon  the  assent  of  all  the  parties.  The  subjects 
of  the  grant  are  property;  the  right  to  acquire  and  hold  property 
In  perpetuity  ;  certain  obligations  are  imposed  on  all  the  parties  to 
he  contract.  The  State,  in  granting  the  charter,  parts  with  its 
prerogative,  never  to  be  resumed  (Foy  vs.  The  University,  Terret  2Hey  9  Chn  ch 
is.  Taylor,)  and  it  is  an  implied  contract  with  the  other  parties, 
lot  to  re-assert  the  right  to  grant  the  franchise  to  another,  or  to 
mpair  it  in  any  way.  There  is  also,  an  implied  contract  with  the 


20 


1 


donors  or  founders,  or  such  persons  as  they  have  delegated  to 
represent  them,  that  they  should  have  a  right  to  visit  and  govern 
the  corporation,  and  in  case  of  a  dissolution,  the  reversionary  right 
of  the  founders  to  the  property,  should  be  preserved  inviolate. 
The  corporators  acquire  a  right  of  perpetual  succession,  of  suing 
and  being  sued,  of  purchasing,  holding,  and  selling  all  kinds  of 
property,  of  having  a  common  seal  and  making  rules  and  by-laws 
for  their  own  government,  not  contrary  to  the  laws  of  the  land. 
The  obligation  imposed  upon  them,  and  which  is  the  real  consid¬ 
eration  of  the  grant  is,  that  they  would  act  up  to  the  design  of  the 
founder,  and  for  which  purpose  alone,  they  were  created.  “  If 
they  fail  to  perform  their  part,  there  is  an  end  of  the  compact.” — 
3 t. r. 286.  King  vs.  Pasmore. 

stoney.  “There  is  also  an  implied  contract  between  the  corporation  and 
Dartmouth  Col-  1  .  1 

lege  case.  every  benefactor,  upon  a  like  consideration,  that  it  would  admin- 

ister  his  bounty  according  to  the  terms  and  for  the  object  stipulated 
in  the  charter.”  If  such  are  the  principles  which  govern  cases  of 
this  nature,  we  have  shown  that  the  charter  of  1789  was  a  grant, 
a  contract;  we  have  shown  the  obligations  imposed  upon  the 
contracting  parties;  we  have  shown  the  rights,  privileges  and  ad¬ 
vantages  which  they  have  acquired,  on  the  one  hand,  and  which 
have  been  bestowed  by  the  State,  on  the  other;  we  have  shown 
that  such  a  grant  cannot  be  resumed,  and  in  case  of  dissolution  of 
the  corporation,  there  is  a  reversionary  right  to  the  funds  in  the 
founder  or  donors,  or,  in  a  case  like  this,  where  the  founders  or 
donors  are  not  in  being ,  in  such  trustees  as  this  court  may  appoint 
acting  under  its  general  jurisdiction,  as  to  trusts;  we  have  shown 
that  such  a  contract  canfiot  be  impaired  without  violation  of  the 
4  Wheaton,  51s.  constitution  of  the  State  and  of  the  United  States.  The  Dartmouth 
College  case  alone,  is  sufficient  authority  for  that  purpose. 
We  have  only  then  to  show  that  the  Act  of  1834,  is  in  violation  of 
those  principles,  and  it  is  void,  which  is  a  matter  of  evidence. 
The  act  of  1834,  in  the  first  place,  repeals  the  Act  of  1789,  and  by 
which  repeal  the  grant  of  1789  is  recalled,  which  is  in  violation  ; 
of  the  obligation  of  the  State  that  it  would  never  re-assert  the  right 
to  grant  the  franchise  to  another,  or  impair  it  any  way.  In  the  sec¬ 
ond  place,  the  Act  of  1789,  granted  the  power  to  the  corporation  to 
hold  and  sell  property,  real  and  personal,  and  to  apply  the  revenues 
to  the  objects  of  the  bounty,  for  all  time — it  was  perpetual.  The 
Act  of  1834  is  limited  to  twenty-one  years  ;  and  is  not  that  a  male- \ 
rial  difference  in  the  contract '!  Does  not  that  violate  the  obligation! 


21 


of  the  State  with  the  donors,  Drs.  Hollingshead  and  others.  Those 
were  not  the  terms  upon  which  they  gave  their  money.  They 
intended  a  fixed,  permanent  and  certain  charity.  One  may  as 
well  say  that  a  term  of  years,  or  a  life  estate  in  property,  is  equal 
to  an  absolute  and  unqualified  right,  a  fee  simple.  By  the  perpet¬ 
ual  charter,  the  State  assured  the  donors  that  their  beneficiaries 
should  enjoy  their  bounty  for  all  time.  The  Act  of  1834  limits  it 
to  twenty-one  years,  and  the  obligation  of  the  contract  is  impaired 
in  that  respect.  In  the  third  place,  by  the  Act  of  1789 — (the  deed 
of  trust) — the  cestui  que  trusts  or  beneficiaries  and  the  sole  cestui  que 
trusts  or  beneficiaries  of  this  Charity,  were  the  Elderly  and  Disabled 
Ministers  and  the  Widows  and  Orphans  of  the  Clergy  of  the  Inde¬ 
pendent  or  Congregational  Church,  in  the  State  of  South  Carolina, 
and  the  Society  was  called  by  that  name.  So  clear,  so  determined 
were  the  donors  in  their  purpose,  and  wishing  to  be  clearly  under¬ 
stood  to  that  effect,  they  not  only  gave  that  class  of  persons  their 
bounty,  their  charity,  but  they  even  called  the  Charity  by  their 
name.  The  Act  of  1834  abolished  that  corporation  and  created  a 
new  one,  called  by  a  new  name,  and  with  new  beneficiaries.  The 
new  corporation  is  called  “  The  Society  for  the  relief  of  Elderly  and 
Disabled  Ministers  and  of  the  Widows  and  Orphans  of  the  Clergy 
of  the  Independent  or  Congregational  Church  in  the  city  of 
Charleston,”  and  the  beneficiaries  are  this  new  corporation,  and 
the  Church  of  that  name  in  the  city  of  Charleston. 

The  act  of  1834,  therefore,  changes  the  charter  in  that  respect, 
and  is  in  violation  of  the  solemn  contract  of  the  State  with  the 
donors,  that  their  bounty  should  be  bestowed  on  those  for  whom 
they  intended  it — but  there  is  another  obligation  growing  out  of 
this  contract,  and  one  which  is  equally  to  be  held  inviolable :  that 
is  the  contract  between  the  corporators  and  the  donors,  which  con¬ 
tract  is  reached  by  the  common  law  of  the  land.  The  corporation 
have  contracted  with  the  donors  to  administer  their  funds  accord¬ 
ing  to  the  terms  and  for  the  objecis  stipulated  in  the  charter.  Is 
not  the  Act  of  1834  in  direct  violation  of  the  obligation  of  that  con¬ 
tract  and  are  not  the  corporators  amenable  to  law  for  such  viola¬ 
tion.  The  rule  of  law  is  clear — where  one  party  violates  his 
contract,  the  contract  is  at  an  end,  and  he  has  no  more  rights  in 
the  premises,  and  the  right  of  property  reverts  to  the  donors.  If 
the  changes  I  have  enumerated  are  not  essential  changes,  impair¬ 
ing  the  rights  of  the  cestui  que  trusts,  and  vitally  affecting  the  in¬ 
terests  and  organization  of  the  Society  under  its  old  charter,  in 


22 


fact,  if  they  do  not  abolish  the  old  charter,  it  would  be  difficult  to 
comprehend  what  was  their  effect.  If  these  principles  are  correct 
legal  principles,  the  Act  of  the  Legislature  of  South  Carolina  now 
in  question,  impairs  the  obligation  of  the  charter  of  1789,  and  is 
consequently  unconstitutional  and  void.  But  it  has  been  conten¬ 
ded  that  all  this  is  very  right,  and  that  the  act  would  have  been 
unconstitutional  and  void,  if  the  corporators  had  not  assented  to 
those  changes — if  they  had  not  become  parties  to  the  transaction, 
and  willingly  surrendered  their  trust.  In  fact  that  they  themselves 
applied  to  the  Legislature  to  give  them  power  to  transfer  the  prop¬ 
erty  which  they  had  contracted  to  hold  for  one  class  of  persons  to 
another.  I  shall  proceed  to  show,  that  the  Trustees  of  the  charity, 
the  corporation,  could  not  consent  to  the  Act  of  18:14,  because  they 
had  not  the  right  to  consent,  and  an  unlawful  consent  is  no  consent, 
and  cannot  divest  persons  of  their  fixed  lights  and  interests  in 
property.  The  relators  contend  that  the  corporation  took  the 
funds  of  the  donors  as  Trustees  for  the  beneficiaries,  and  that  a 
trust  must  always  b.e  accepted  upon  the  terms  and  for  the  objects 
for  which  it  was  intended.  They  as  trustees  could  lawfully  do  no 
act  by  which  they  would  denude  their  trust  and  impair  their  con¬ 
tract  with  the  donors  and  violate  these  duties  as  Trustees.  The 
Court  of  Chancery  in  this  State  has  a  general  jurisdiction  in  all 
matters  of  charity  where  the  revenues  are  managed  by  Trustees,  . 
and  a  bill  will  lie  to  compel  the  Trustees  to  apply  the  revenues 
according  to  the  foundation.  This  general  jurisdiction  arises  upon 
the  principle  of  trusts,  as  all  trusts  are  under  the  supervision  of 
this  Court.  It  is  the  tribunal,  where  those  who  are  unable  to  protect 
themselves,  eitherin  person  orproperty,  can  either  in  theirown  name  : 
or  in  the  name  of  the  State,  obtain  that  protection  which  every  govern-  J 
ment  owes  to  its  incapacitated  citizens.  Under  this  jurisdiction  the 
benevolent  may  be  assured  that  the  objects  of  their  bounty  will  be 
protected  in  their  rights  and  interest,  when  once  secured  to  them  by  | 
a  lawful  charter,  for  a  thousand  generations;  the  believer  in  a  certain  | 
religious  faith  may  provide  for  the  laborers  for  him  in  the  vine¬ 
yard,  and  be  assured  that  his  bounty  will  be  protected  by  the  laws 
of  the  land.  We  are  indebted  to  the  English  Chancery  for  this 
practice.  The  general  principle  is  found  in  2  Fonb.  Equity  207. 
“As  the  preservation  of  every  private  man’s  goods  is  the  preserva¬ 
tion  of  the  commonwealth  in  general,  so  anciently  in  this  realm 
there  were  things  which  belong  to  the  King  as  Parens  Patrie  and 
fall  under  the  care  and  direction  of  this  Court,  as  Charities,  Infants, 


23 


Idiots  and  so  forth,  the  chancellor  was  always  regarded  as  the 
keeper  of  the  Kings  conscience  •  with  us  the  State  is  Parens  Patrie 
and  the  same  offices  and  duties  in  relation  to  the  same  classes  of 
persons  devolve  on  our  Courts  of  Chancery.  In  charity  cases,  the 
practice  has  adopted  several  modes  of  redress,  according  to  the  na¬ 
ture  and  character  of  the  charity.  There  is  but  one  mode  which  con¬ 
cerns  us  in  this  case,  namely  an  information  filed  by  the  Attorney 
General  at  the  relation  of  a  Relator.  If  the  charity  be  created  by 
charter  and  the  donors  incorporated,  they  have  their  visitorial  pow¬ 
ers,  and  if  they  manage  the  revenues  they  are  trustees;  I  have 
previously  shown  that  this  corporation  is  a  lay  eleemosynary  cor¬ 
poration,  and  one  as  to  which  the  rules  applicable  to  civil  corpo- 
tions  do  not  apply. 

Lord  Mansfield  said,  in  pronouncing  judgment  in  St.  John’s 
College  case  :  “  The  foundation  of  colleges  are  to  be  considered  in 
two  views,  as  they  are  corporations,  and  as  they  are  eleemosynary: 
as  eleemosynary,  they  are  the  creatures  of  the  founders;  he  may 
delegate  his  powers  either  generally  or  specially;  he  may  pre¬ 
scribe  particular  modes  and  manners  as  to  the  exercise  of  it.” 
Where  a  charity  is  established  by  charter,  the  revenues  are  its 
foundations.  It  is  the  creature  of  the  donors,  and  its  objects  can 
only  be  ascertained  from  the  charter  expressing  the  will  of  the 
donor.  The  corporators  managing  the  revenues  are  trustees.  In 
a  charity  of  this  kind,  where  the  cestui  que  trusts  are  not  in  exist¬ 
ence,  but  liable  to  be  in  existence,  the  corporators  are  trustees  to  pre¬ 
serve  the  uses  to  their  benefit,  as  the  trustees  represent  the  interest 
of  all,  and  hold  the  legal  title  for  the  benefit  of  all,  there  can  be  no 
complaint,  unless  there  is  a  breach  of  trust;  then  the  mode  of  pro¬ 
ceeding  is  in  the  hands  of  the  Attorney  General,  with  a  relator 
who  may  or  may  not  have  any  interest  in  the  subject  matter.  In 
the  Attorney  General  vs.  Middleton,  it  was  held,  “That  the  inter¬ 
position  of  the  Court  must  be  referred  to  the  general  jurisdiction 
of  the  Court,  in  all  cases  in  which  a  trust  conferred  appears  to  be 
abused.”  Story’s  Equity  Jurisprudence  to  the  same  point.  In 
this  case  there  are  two  questions :  an  abuse  of  trust,  and  to  restore 
the  revenues  of  the  Charity  to  its  original  foundation.  I  refer  also 
to  3d  Black.  427 :  Whenever  it  is  necessary,  the  Attorney  Gen¬ 
eral,  at  the  relation  of  some  informant  who  is  actually  called  a 
Ilrelator,  files,  ex  officio,  an  information  in  the  Court  of  Chancery, 
;o  have  the  Charity  properly  established.  Mr.  Hill  to  the  same 
point:  “Any  question  affecting  a  charitable  trust  may  be  brought 


1  Burrowx,  200. 


2  Vesey,  Sr.,  328. 


Sec.  1191. 


3Bl’k.427. 


Hill  True.  067 
and  668. 


24 


before  the  Court  by  information  in  the.  name  of  the  Attorney-Gen¬ 
eral.”  Where  it  is  sought  to  administer  or  control  an  established 
charity  under  the  direction  of  the  Court,  there  must  be  an  informa- 
1240-’k' and  Fin'  ti°n  by  the  Attorney  General.  Neither  long  acquiescence  nor 
the  want  of  a  relator  will  affect  the  Attorney  General’s  right  to  pro- 
t  Rnsseii  236.  ceed,  and  the  relator  may  or  may  not  have  any  interest.  Where 
the  Court  has  undertaken  to  regulate  a  charity,  it  will  act  without 
any  actual  complaint,  when  circumstances  come  under  its  notice 
sections.  which  require  a  remedy. - Story’s  Equity  Pleadings.  The 

1  Rich.  e.  106.  leading  case  in  our  books  is  The  Attorney  General  vs.  Jolly, 

2 Rich. e.  which  was  followed  by  the  Presbyterian  Church  case,  where  it 

was  held — ‘‘That  where  a  fund  was  in  the  hands  of  trustees  for 
the  benefit  of  a  Church,  a  bill  will  lie  to  compel  the  trustees  to 
apply  the  funds  to  the  purposes  for  which  it  was  created.” 

I  have  now  shown  that  we  have  a  right  to  complain,  and  that  we 
are  properly  before  the  Court,  and  will  proceed  to  show  that  the 
corporation  have  not  discharged  their  duties  as  trustees  of  this 
Charity.  The  facts  are  all  admitted,  that  the  corporation  is  trustee,  . 
and  as  a  trustee  stands  upon  the  same  footing  as  an  individual. — 

2 Vesey, Jr., 40. gee  The  Attorney  General  vs.  The  Foundling  Hospital;  The  At¬ 
torney  General  vs.  Jolly.  We  contend  that  it  is  law  that  the  trus¬ 
tees  should  manage  and  dispose  of  the  trust  property  as  may  best 
4 Beaver 45S.  promote  the  charitable  purposes  of  the  founders,  and  that  they 

2  Bear.  428.  should  be  guided  on/y  by  a  desire  to  promote  the  lasting  interest  of 

the  Charity.  In  the  celebrated  case  of  The  Attorney  General  vs. 

■2  Russell,  522.  The  Earl. of  Mansfield,  Lord  Eldon  said:  “My  duty  is  to  enforce 
the  trusts  as  they  stand.  The  founder  was  the  person  to  say  how 
far  his  institution  was  likely  to  be  useful  to  the  public.”  How  well 
may  such  doctrine  be  applied  here!  In  what  bold  relief  do  they* 
stand  forth  to  vindicate  this  Court,  and  to  uphold  it  in  the  dis- 
3  MenTiiie, 35S. charge  of  its  duty!  In-  another  case — The  Attorney  General  vs. 

Pearson — his  Lordship  said:  “I  apprehend,  that  when  a  man 
gives  his  money  to  such  an  institution  for  a  civil  purpose,  one  of 
the  duties  of  the  Court  is  to  take  care  that  t  se  who  have  the 
management  of  it  shall  apply  it  to  no  other  pu  ose,  as  long  as  it 
is  capable  of  being  applied  according  to  the  01  p'nal  intention.” 

It  is  certain  that  the  beneficiaries  under  a  charter  of  this  kind 
have  such  rights  and  interest  in  the  revenues  of  the  charity  as  to 
entitle  them  to  the  protection  of  this  Court,  and  that  the  Corporators 
take  the  fund  for  their  benefit,  and  can  do  no  act  by  which  the 
trust  will  be  denuded,  and  that  they  have  no  such  legal  title  as  will 


25 


•ntitle  them  of  right  to  dispose  of  the  trust  funds  ;  such  are  the 
lecisions  of  our  own  Courts.  In  the  case  of  Bush  vs.  Bush,  it 
vas  held  to  be  an  acknowledged  principle  of  this  Jurisdiction, 
‘That  the  power  of  the  Trustee  over  the  legal  estate  or  property 
jested  in  him,  exists  only  for  the  benefit  of  the  cestui  que  trusts  ; 
is  a  general  rule  he  can  do  no  act  as  legal  owner  which  prejudices 
he  rights  of  the  cestui  que  trusts ;  neither  the  fraud  nor  folly, 
leither  the  ignorance  nor  laches  will  be  permitted  to  prejudice  the 
'.estui  que  trusts.  In  Guignard  vs.  Mayrant,  “  The  waiver  of  a 
Trustee  of  the  rights  of  his  cestui  que  trusts,  by  a  contract 
executory  in  its  character  and  without  a  valuable  consideration 
in  behalf  of  a  party  who  was  aware  of  the  rights  of  the 
cestui  que  trusts,  will  not  he  enforced  to  the  prejudice  of  the  trust 
estate.  We  cannot  have  principles  more  clearly  or  more  equitably 
defined,  and  if  this  Court  means  to  adhere  to  them,  if  they  have 
become  a  part  of  the  law  of  the  land  and  are  not  mere  sentences 
against  Bush  and  against  Mayrant,  the  corporators  in  this  case 
had  no  right  to  consent  to  a  repeal  or  amendment  of  the  charter 
of  1789,  and  they  are  fully  within  the  purview  of  both  decisions. 
By  consenting  they  have  violated  that  general  principle  of  this 
Jurisdiction.  That  they  hold  the  legal  estate  only  for  the  benefit 
of  the  cestui  que  trusts  and  can  do  no  act  as  legal  owners  which 
prejudice  the  rights  of  the  cestui  que  trusts  ;  and  what  have  they  done 
in  this  case.  They  have  actually  consented  to  and  done  an  act 
which  deprives  their  cestui  que  trusts  of  their  rights  and  interest 
in  the  revenues,  and  they  have  exercised  the  legal  ownership  for 
that  purpose  :  they  have  waived  the  rights  of  their  cestui  que 
trusts,  without  any  consideration  in  behalf  of  a  party  who  was 
aware  of  the  rights  of  the  cestui  que  trusts.  If  these  cases  are 
law,  this  consent  is  nugatory,  and  the  case  stands  upon  the  same 
footing,  and  is  to  be  governed  by  the  same  authorities  as  if  the 
Act  of  17H9  had  been  repealed  without  the  consent  of  the  Cor¬ 
poration.  The  general  rule  is,  that  “a  charity  must  be  accepted 
upon  the  same  ter  -s  upon  which  it  is  given,  or  it  must  be  relinquished 
to  the  right  he.  Finch  Term  Reports  221,  the  Margaret  and 
Regius  professor  jn  Cambridge,  held  “  that  a  charity  cannot  be 
altered  by  a  new  agreement  between  the  heir  of  the  donors  and  the 
donees,  where  several  distinct  charities  are  given  to  a  Parish  for 
several  purposes;  no  agreement  of  the  Parishioners  can  alter  and 
divert  them  to  any  other  purpose.”  There  is  a  Connecticut  case 
which  is  very  much  in  point;  Langdon  vs.  The  Plym.  Cong.  Ass. 


1  Stro.  E.  377. 


3  Stro.  E.  112. 


1  Vernon,  55. 

Story  Eq.  Juris 
1075. 

Ambler  373. 

12  Com.  113. 


26 


In  that  case  it  was  decided  that  in  an  ecclesiastical  Society  fo: 
the  support  of  the  Ministers  of  the  Gospel  in  said  Society,  j 
permanent  fund  being  subscribed  among  themselves  for  that  purpose 
the  Society  could  not  he  destroyed  by  a  vote  of  the  majority ,  even  bj 
returning  the  money  to  the  original  owners,  after  having  accepter 
the  funds  subject  to  the  terms  prescribed  by  the  donors.  This  is  j 
case  directly  in  point,  for  it  is  alleged  by  the  Defendants  that 
the  Charter  of  1789  was  repealed  with  the  consent  of  the  Corpora 
tion  by  a  majority  vote.  If  the  case  quoted  above  is  law,  this  is 
no  longer  an  open  question,  and  the  Trustees  cannot  consent  and 
destroy  the  old  Corporation  ;  this  case  was  decided  upon  general 
principles,  which  are  these:  that  a  charity  must  be  accepted  upon 
the  same  terms  upon  which  it  is  given,  and  that  where  all  the 
parties  to  the  contract  had  assented  to  the  contract,  donors  and 
donees,  it  could  not  be  repealed,  altered  or  amended  without 
their  several  consent.  Mr.  Finley  in  this  case,  on  the  similar 
occasion,  represented  the  minority,  and  reported  his  views  to  the 
Society.  (See  Appendix.) 

I  have  shown  that  the  Act  of  1834  is  unconstitutional  and  void, 
because  it  is  repugnant  to  the  Constitution  of  the  State  of  South 
Carolina,  and  of  the  United  States,  inasmuch  as  it  deprives  free¬ 
men  of  their  property  without  a  trial' by  the  judgments  of  their 
peers,  and  by  the  laws  of  the  land,  and  because  it  is  a  law  im¬ 
pairing  the  obligation  of  contracts.  I  have  shown  that  a  Trustee 
cannot  denude  his  trust ,  that  he  takes  the  legal  ownership  only  for 
the  benefit  of  the  cestui  que  trusts  and  cannot  do  any  act  to  pre¬ 
judice  their  rights,  that  he  can  do  no  act  to  waive  their  rights,  by 
any  contract  executory  in  its  character  and  without  a  valuable  con¬ 
sideration  in  behalf  of  a  party  who  was  aware  of  their  rights  and 
consequently  that  the  Corporators  could  not  legally  consent  to  the 
repeal  of  the  Act  of  1789,  so  the  Act  of  1834  was,  legally  speak¬ 
ing,  a  repeal  without  the  consent  of  the  Corporation. 

I  have  shown  that  this  Court  has  jurisdiction  of  this  case, 
and  that  we  have  a  right  to  complain  (and  the  important  facts 
being  admitted,)  that  we  are  entitled  to  such  redress  as  the  nature 
of  the  case  admits. 

We  contend  therefore,  that  where  there  has  been  an  abuse  or 
misuse  of  the  funds  of  a  charity,  this  Court  will  make  such 
rules  and  orders  as  will  secure  the  application  of  the  fund  within 
the  prescribed  channel,  and  will  direct  an  account;  and  in  case 
of  gross  abuse  or  misuse,  commit  its  administration  to  other 


27 


fnds.  There  is  no  distinction  recognized  whether  the  Trustees 
E3  individuals  or  a  Corporation — Greenes.  Rutherford.  The  1  versejs  Jr.,  p. 
{inciples  upon  which  the  account  is  to  be  taken,  will  he  found  in 
te  Attorney  General  vs.  the  Bailiffs  and  Burgesses  of  East  Red  foi  d.  3  M.  &  k.,  457. 
But  we  have  another  mode  of  redress,  that  of  following  the  funds 
:to  the  hands  of  those  who  have  received  them,  and  we  will 
intend  that  there  is  a  general  right  in  Equity  to  follow  a  trust 
Ind  wherever  found,  so  long  as  it  can  he  designated  as  such.  If 
ie  Act  of  1834  is  not  valid,  no  one  will  deny  hut' that  donations 
i  the  Circular  Church  are  misappropriations  of  the  funds  of  the 
rarity ;  that  they  have  been  received  by  that  Church  is  admitted, 
j.d  that  that  Church  had  notice  of  the  trust,  is  fully  established, 
id  that  they  were  volunteers,  giving  no  valuable  consideration, 

Its  been  proved.  I  will  now  establish  upon  authority,  the 
•inciple  that  has  been  laid  down,  and  cite  Moses  vs.  Montgomery.  1  *<*“•  ch.  128. 
i  exter  vs.  Stewart.  In  one  of  our  own  cases,  McNeil  vs.  Mor-Wo  55.  Rich- 

.  ,  Equity  cases,  175 

w,  it  was  held  “so  long  as  property  held  in  trust,  or  a  trust 

nd  can  be  tracecl,  it  will  enure  to  the  benefit  of  the  cestui  que 

ust,”  and  there  is  no  difference  whether  the  fund  be  in  land  or 

oney.  The  right  to  follow  it  into  the  hands  of  a  purchaser  for 

iluable  consideration  with  notice  of  the  trust ,  or  into  the  hands  of 

volunteer  without  notice  of  the  trust,  is  equally  clear.  The  pur- 

laser,  under  such  circumstances,  is  an  implied  or  constructive 

ustee  for  the  benefit  of  the  cestui  que  trust ,  and  for  the  purposes 

7  the  trust,  and  I  shall  furnish  the  Court  with  authorities  as  to 

ie  several  forms  into  which  such  property  may  be  converted,  and 

row  into  whatever  form  it  may  be  turned  j  wdiether  land,  money, 

r  money  converted  in-to  land,  it  is  all  the  same.  The  trust  is  not 

)  be  got  rid  of,  and  upon  that  principle,  depends  more  than  any 

ther  the  importance  of  this  jurisdiction,  its  great  value  to  the 

:hole  country.  It  is  there  that  the  weak  and  impotent  may  seek 

rotection,  not  only  from  the  world  at  large,  but  from  those  who 

re  by  law  constituted  their  guardians  and  protectors.  In  Man- 

ell  vs.  Mansell — (this  was  land  in  trust,  and  the  trustee  held  the  2  Pere  w.  682. 

tie  for  the  benefit  of  a  life  tenant,  with  remainder  over  to 

ie  heirs,  male,  (in  tail)  successively.  The  trustees  conveyed 

ae  premises  to  the  life  tenant.)  It  was  held  “that,  had  the  pre- 

uses  been  conveyed  to  one  without  notice,  and  for  a  valuable  con- 

ideration,  such  purchaser  must  have  held  the  lands  discharged 

f  the  trust,  and  the  son  of  the  marriage,  who  was  injured  by  the 

reach  of  trust,  have  his  remedy  against  the  trustees  alone,  who 


28 


would  have  decreed  to  purchase  lands  with  their  own  raone 
equal  in  value  to  the  lands  sold,  and  to  hold  them  upon  the  san 
trusts  and  limitations  as  they  held  those  sold  by  them.  But  ev< 
in  the  case  of  a  purchaser,  if  the  purchaser  had  notice  of  the  trus 
which  the  trustees  were  subject  to,  us  annexed  to  their  estate,  sut 
notice  would  have  made  him  liable  to  the  same  trusts;  so  if  the 
had  been  a  voluntary  conveyance  made  of  this  estate,  though  wit 
out  notice ;  the  voluntarygrantee  would  have  stood  in  the  placeof  tl 
grantors,  and  be  held  liable  to  the  trusts  in  the  same  manner  i 
the  trustees  themselves  were;  but,  in  the  present  case,  it  is  muc 
stronger ;  for  here,  alas  !  not  only  notice  of  the  trust,  but  the  coi 
veyance  itself  voluntary  and  made  to  Sir  Edward  Mansell,  tl 
plaintiff’s  father,  (who  was  the  tenant  for  life)  and  he  was  himse 
particeps  cnminis ;  nay,  one  for  whose  sake  and  interest  all  th 
had  been  done.”  It  would  be  difficult  to  conceive  a  case  inoi 
directly  in  point. 

The  case  of  Mansell  vs.  Mansell  is  this.  The  Trustees  an 
one  of  the  beneficiaries  have  here  as  there,  consented  to  a  grat 
(The  Act  1834)  to  convey  the  trust  estate  to  the  absolute  use  < 
one  of  its  own  beneficiaries,  the  Circular  Church,  who  was  not  only 
volunteer,  but  a  volunteer  with  notice,  and  is  within  the  scope  ( 
this  case.  The  act  of  Mr.  Vaughan  was  decided  to  be  a  breac 
of  trust  upon  the  reasoning  that  it  seemed  to  the  Court  in  conimo' 
sense,  reason  and  justice,  to  be  capable  of  no  other  construction 
For  when  Trustees  are  appointed  to  preserve  an  estate  and  for  n 
other  purposes,  and  they,  instead  of  preserving  it,  do  a  wilful  ac 
with  an  intent  and  in  order  to  destroy  it,  can  this  be  otherwis 
than  a  plain  breach  of  trust,  and  how  can  it- be  made  clearer  tha 
by  barely  putting  the  case?  Should  this  Court  hold  this  n 
breach  of  trust  and  upon  the  principles  contended  for  by  the  defend 
ants,  it  would  SAeep  away  all  charitable  trusts  in  the  State,  ani 
all  marriage  settlements.  If  in  fact  Trustees  are  at  liberty  in  an 
way  to  destroy  what  they  were  appointed  to  protect,  the  whole  sys 
tem  is  forever  gone.  The  same  principle  applies  where  the  trust  fund 
3  Maul’d  Selwyn consisted  in  money,  notes,  bills  or  stocks.  The  case  of  Taylo 
vs.  Plummer  is  in  point,  as  to  following  money  of  a  trust  convene' 
loves. 517.  into  land.  In  Lench  vs.  Lench,  Sir  William  Grant  held  “that  th' 
purchase  was  made  with  trust  money,  all  depends  upon  the  proo 
of  the  fact,  for  whatever  doubts  may  have  been  formerly  entertainei 
upon  the  subject,  it  is  now  settled,  that  money  may  be  follower 
into  land,  in  which  it  is  invested,  and  a  claim  of  this  sort  may  be  sup 


jrted  by  parol  evidence.”  The  money  given  the  Circular  Church 
us  for  the  most  part  invested  in  the  buildings  on  their  land, 
jd  this  authority  is  cited  to  show  that  the  land  and  buildings  are 
lb  I  e  for  the  trust  funds.  The  case  of  Taylor  vs.  Plummer  is  full 
(  to  all  those  points.  If  such  be  the  principles  in  general,  trusts, 

Iaritable  trusts,  stand  upon  a  more  liberal  footing.  The  defend- 
ts  have  claimed  that  they  are  protected  by  a  lapse  of  time. 
3\v  as  between  express  trustees  and  the  cestui  que  trusts ,  there 
n  be  no  question  that  the  statute  is  inapplicable — Gunnell  vs. 
yce.  But  the  Circular  Church  is  in  this  case  an  implied 
i  constructive  trustee,  and  that  implied  and  constructive  trusts 
ie  within  the  analogy  of  the  statute  of  limitation.  I  admit  that 
ch  is  the  general  rule,  and  that  the  rule  has  been  recognized  in 
jir  courts  in  the  above  case.  But  freely  as  I  admit  the  rule,  I 
ill  contend  that  there  are  as  positive  and  as  well  defined  excep- 
ons  to  the  rule  as  the  rule  itself,  and  which  I  will  illustrate,  both 
y  authority  and  upon  principle.  My  proposition  is,  that  no 
pse  of  time  will  bar  a  remedy  against  the  constructive  trustee  of 
charily  in  Equity.  The  first  exception  is,  that  the  cestui  que 
ust  will  not  be  barred  from  his  right  to  immediate  relief  by  any 
ngth  of  acquiescence,  unless  he  have  an  immediate  possessory  title 
i  the  beneficial  interest.  Mr.  Hill  says,  “  It  will  be  needless  to  add 
lat  a  cestui  que  trust ,  being  an  infant,  or  otherwise  non  sui  juris, 
innot  be  prejudiced  by  any  acquiescence.”  And  the  second  ex- 
iption  is,  “  that  trusts  for  charities  are  not  effected  by  the  statute 
"  limitations.” — Attorney  General  vs.  the  Mayor  of  Exetor,  Jac. 
18.  The  principles  upon  which  these  decisions  turn  are  these, 
that  acquiescence  has  not  the  same  effect  in  barring  an  equita- 
le  right,  where  the  parties  consist  of  a  numerous  body  of  persons, 
s  creditors  or  a  Society:  relief  has  been  decreed  in  their  favor, 
Iter  a  lapse  of  over  one  hundred  years;  and  that,  there  is  an  im- 
ossibility  of  any  immediate  possessory  title  to  the  beneficial 
iterest  in  such  a  charity;  an  individual  beneficiary  may  be  barred 
ho  has  acquiesced  for  twenty  years  in  the  perversion  of  the 
mds,  but  to  say  that  the  beneficiaries  generally  in  a  Society  of 
lat  sort  where  they  are,  or  may  in  some  future  time  become  nu- 
lerous  are  barred  by  acquiescence  is  rather  absurd  to  my  mind, 
id  at  variance  with  the  very  nature  and  character  of  the  Society, 
ut  there  is  another  exception—  that  is,  that  the  claims  are  not 
arred  because  they  are  non  sui  juris,  and  cannot  complain  in  their 
vn  name;  they  stand  on  the  same  footing  with  infants  and  married 


Leuin  610, 

2  Rich.  E.  260- 


Hill,  376, 
Top  Paying, 

Idem. 


30 


18  Beav.  223. 


« 

17  Bear.  435. 


women.  They  have  no  capacity  to  assert  their  rights,  and  no  o 
can  hold  adversely  to  them;  they  come  into  Court  in  the  name 
the  Attorney  General,  the  law  officer  of  the  State;  and  the  statu 
does  not  apply  to  such  proceedings.  The  law  is,  that  “  T1 
Attorney  General,  whether  suing  ex  officio,  or  at  the  relation, 
not  a  person  having  a  right  to  bring  an  action  or  a  suit  in  Equill 
to  recover  land  within  the  Statute  of  Limitations.” — “Where?1 
person,  or  class  of  persons,  have  existed  who  could  institute  pr! 
ceedings  to  redress  a  wrongful  alienation  of  charity  property ,  tl 
Statute  of  Limitations  does  not  bar  suits  by  the  Attorney  Genera 
whether  ex  officio  or  at  relation,  to  redress  the  injury.”  The  Atto 
ney  General,  at  the  relation,  vs.  The  Magdalen  College,  Oxforc 
This  judgment  chines  down  to  our  times,  1854,  and  is  a  review  i 
all  the  cases  necessary  to  this  subject.  In  this  case  it  was  als 
held — “That  the  alienation  of  charity  property  is  as  much  a  breac 
of  trust  if  it  is  conveyed  to  another  charity,  as  if  it  were  alienate 
to  an  individual.”  So  the  funds  having  been  appropriated  for  th 
benefit  of  the  Circular  Church,  another  charity,  can  make  no  di 
ference  at  all.  In  that  case,  which  was  similar  to  this  in  man 
points,  Sir  John  Romilly  said — as  his  Honor  did  say  here — “I  d 
not  see  the  slightest  cause  for  imputing  any  sinister  motives,  c 
that  the  parties  did  not  think  they  were  acting  for  the  best ;  br 
they  committed  an  error  of  judgment,  and  the  transaction  cannc 
be  supported.”  In  the  case  of  The  Attorney  General  vs.  St.  Cros 
Hospital,  it  was  held  that — “In  cases  of  charitable  trusts,  th 
Court  has  authority  to  see  them  properly  performed,  notwithstand 
ing  there  may  be  a  general  or  special  visitor.”  That  case  is  on 
of  considerable  interest  among  charity  cases.  “By  chartei 
dated  in  1141 — it  took  its  origin.  Henry  de  Blois,  Bishop  c 
Winchester,  brother  of  King  Stephen,  committed  to  the  guai 
dianship  and  administration  of  the  Master  and  Brethren  of  th 
Hospital  of  St.  John  of  Jerusalem,  the  Hospital  of  the  Poor  c 
Christ  or  St.  Cross,  for  the  support,  maintenance,  lodging  an' 
clothing  of  thirteen  poor  men,  who  should  reside  there  perms 
nently.”  “  Besides  these  thirteen  poor  men,  one  hundred  othe 
poor  and  modest  persons,  of  the  most  indigent  that  can  possibl 
be  found,  shall  be  received  at  the  hour  of  dinner,  to  whom  a  coarse 
loaf  of  the  same  weight  (as  above,)  shall  be  given,  and  one  dis 
as  shall  seem  meet  according  to  the  convenience  of  the  day,  an 
a  cup  of  the  same  measure;  and  having  left  dinner,  may  be  a 
lowed  to  take  away  whatever  of  food  or  drink,  shall  be  left  over.1 


31 


very  large  property  was  bestowed  by  the  Bishop,  including 
reral  Churches.  By  a  charter  from  the  Second  Henry,  the 
Dspital  of  St.  John  assigned  the  Hospital  of  St.  Cross  to  Richard 
:  Jocelyne,  the  then  Bishop  of  Winchester,  in  1185,  who  added 
other  hundred  poor,  and  granted  certain  property  to  the  Hos- 
:al.  The  recital  cjearly  expressed  the  continuance  of  the  trust 
tich  had  already  been  created.  By  a  grant  from  King  Richard  I, 

3  trust  became  again  vested  in  the  Hospital,  dated  10th  Sept., 
89,  repeating  the  original  trusts  afterwards.  By  an  award  of  a 
pal  commission,  and  by  release  from  the  Hospital  of  St.  John, 

3  guardianship  became  finally  vested  in  the  Bishop  of  Win- 
ester.  In  1336,  a  commission  was  issued  to  inqhire  whether 
3  custody  of  the  Hospital  was  without  care  of  souls,  and  could 
held  with  another  ecclesiastical  benefice.  The  finding  was, 
at  the  Hospital  was  free.  “Both  before  and  after  the  commis- 
hn,  great  irregularity  prevailed  in  the  administration  of  the 
arity.”  The  mischief  was  unremedied  until  William  of  Wyke- 
n,  became  Bishop  of  Winchester.  He  claimed  the  right  of  visi- 
.ion,  and  called  on  William  De  Stowell,  the  then  master,  to 
count  for  the  administration  of  the  charity.  At  first,  he  resisted, 

,t  afterwards  submitted.  In  1370,  he  issued  another  commission 
inquire  into  the  irregularities  and  the  state  of  the  Hospital, 
r  Roger  De  Clowne  was  then  Master;  he  pleaded  that  the  Hos-  ' 
tal  was  a  perpetual  benefice,  sinecure,  free  from  all  accounting, 
le  Commissioners  decided  against  Sir  Roger;  he  appealed  to 
jpe  Gregory  IV,  who  issued  his  Bull  to  the  Bishop  of  London, 
recting  him  to  adjudicate  and  decree  what  was  just.  The 
shop  in  1373,  decreed  against  Sir  Roger;  compelling  him  to  : 
aintain  the  ordinances  of  the  said  Hospital,  as  a  simple  ecclesi- 
tical  benefice  according  to  the  foundation. 

“In  18th  Elizabeth,  a  statute  was  passed,  -which,  after  reciting 
that  the  Hospital  of  St.  Cross,  near  Winchester,  was  founded  in 
e  time  of  King  Stephen,  and  having  continuance  ever  since  with 
indry  confirmations  by  the  Gueen’s  most  noble  progenitors,  from 
ne  to  time,  for  hospitality  and  relief  of  the  poor,”  and  after 
citing  that  Dr.  Reynolds,  master  of  the  Hospital,  had  procured 
ases  to  be  granted,  secured  by  the  seal  in  his  custody  to  Ralph 
leverly,  to  the  impoverishment  of  the  same,  and  in  violation 
the  trust  reposed  in  him,  “enacted  that  the  leases  so  made 
ould  be  utterly  annihilated  and  made  void ;  that  no  others  should 
i  granted;”  “that  the  Hospital  should  be  thereby  established 


32 


1849 

1696 

153  years. 


and  confirmed  for  ever,”  “and  its  property  shall  be  enjoyed  by 
for  ever,”  to  be  employed  and  bestowed  to  those  goodly  and  char 
table  uses,  for  the  relief  and  sustenance  of  the  poor,  accordin 
to  the  lawful  orders  and  consideration  of  the  foundation  of  tb 
same.  Notwithstanding  the  repeated  defeats  of  the  masters  t 
appropriate  the  revenues  in  1696,  a  document  called  the  “Cor 
suetudinarium,”  was  drawn  up  by  Dr.  Markland,  the  then  Masje 
This  document  recited  that  no  statutes  could  be  found  directin 
the  government  and  regulation  of  the  Hospital,  and  that  it  shoul 
hereafter  be  governed  by  the  customs  hereinafter  stated,  by  wliic 
it  was  provided  that  the  master  shall  rule  all  persons  in  the  ho: 
pital,  and  slfbuld  receive  all  the  revenues,  bear  the  whole  charg 
of  the  house,  keep  the  church  and  house  in  repair,  and  the  ove: 
plus,  if  any,  retain  to  himself;  that  he  should  appoint  the  Stew 
ard  and  Chaplin.  This  document  was  confirmed  by  the  Bisho 
in  1696,  with  a  proviso  that  nothing  therein  should  derogate  froi 
the  statutes  of  the  founder,  if  any  should  appear.  At  that  vet 
time  the  statutes  were  in  their  possession,  in  the  strong  box  of  tb 
Hospital.  From  1696  to  1849,  the  Hospital,  with  some  triflin 
alteration,  had  been  regulated  by  the  “  Consuetudinarium.”  I 
1849,  an  information  was  filed  against  the  then  Master,  tb 
Earl  of  Guilford,  and  the  Bishop  of  Winchester,  praying  a  scherr 
for  the  regulation  of  these  charities,  and  a  declaration  the  “Coi 
suetudinarium,”  was  not  a  valid  or  binding  document  among  otln 
matters  and  for  other  relief,  all  tending  to  carry  out  the  original  trust 
It  was  held  that  it  was  the  duty  of  the  Court  to  enforce  the  trus 
as  they  relate  to  the  original  charity ,  and  it  was  so  decreed  in  185' 
one  hundred  and  fifty-three  years  afterwards.  Notwithstandin 
these  repeated  attempts  to  defeat  this  charity,  and  notwithstanding 
was  perverted  for  over  a  century  and  a  half,  it  was,  by  the  meat 
of  an  information  in  this  Court  of  Chancery,  that  it  was  restore 
to  its  original  foundation,. 

It  was  said  by  the  Master  of  the  Rolls,  in  speaking  of  the  Coi 
suetudinarium:  “To  say  that  a  practice  so  created,  and  under  sue 
circumstances,  merely  because  it  has  continued  fora  century  and 
half,  is  toprevail  against  the  manifest  trusts  imposed  by  the  origin 
foundation,  would  be  contrary  to  the  doctrine  daily  enforced  by  tl 
Court,  and  would  be  to  give  a  direct  premium  to  fraud  in  the  a 
ministration  of  charities.”  “  Presumption,  arising  from  time,  h; 
nothing  to  do  with  this  case.”  The  many  singular  features  exit 
ing  between  this  great  case  and  the  case  now  before  the  Court,  hi 


33 


induced  me  to  state  it  at  large,  hoping  that  it  may  serve  to  guide 
as  to  a  right  decision.  As  authorities  that  lapse  of  time  will  not 
bar  this  remedy  against  the  constructive  trustee  of  a  charity,  I 
would  refer  to  Adams’  Equity,  230,  231,  232.  The  Attorney  Gen- 
3ral  vs.  Christ  Hospital,  3,  M.  and  K.,  344;  Sugden  on  Vendors 
md  Purchasers,  436;  Story,  Equity  Jurisprudence,  2  vol.,  sec. 
1192;  the  Commissioners  of  Donations  vs.  W’y  Crouts.  Sir  Ed¬ 
ward  Suo-den  said  :  “Now,  the  old  statutes  did  not  interfere  with 
\quitable  rights ,  but  Equity,  in  analogy  to  the  legal  provisions,  held 
dme  to  be  a  bar,  except  in  some  peculiar  cases,  of  which  charity  was 
the  leading  one.”  And  again:  “By  the  ancient  rule  of  Equity,  no 
me  could  acquire  an  estate  with  notice  of  a  charitable  use  without 
jeing  liable  to  it.”  I  apprehend  that  I  have  now  shown  that 
he  Attorney  General  has  a  right  to  follow  the  funds  in  the  hands 
)f  the  Circular  Church  ;  that  there  is  no  material  difference 
whether  the  fund  be  land,  money,  or  money  converted  into  land; 
'hat  the  remedy  against  a  constructive  trustee  for  a  charity  is  not 
'jarred  by  lapse  of  time.  It  has  been  said,  on  several  occasions, 
md  in  the  answer  of  the  defendants,  that  the  State  has  been 
^stopped  by  the  Act  of  1834.  I  confess  I  do  not  comprehend  the 
orce  of  the  object.  The  Legislature  is  not  the  State.  I  leave  it 
or  the  other  side  to  show  upon  what  authority  the  State  could  be 
.“stopped,  by  an  unconstitutional  Act  of  its  Legislature.  I  have 
seen  unable  to  find  a  case  at  all  applicable  to  the  point.  The 
Legislature  is  not  omnipotent.  It  is  but  a  co-ordinant  branch  of 
;he  government,  and  is  no  more  the  State  than  the  executive  or 
judicial  branch  of  the  government ;  and  it  is  the  province  of  this 
Jourt,  so  far  from  being  estopped  by  the  Legislative  Act,  to  go  on 
md  pronounce  its  judgment  upon  that  Act,  and  if  found  uncon¬ 
stitutional,  to  sweep  it  away  from  the  statute  book. 

Much  has  been  said  as  to  the  foundation  of  this  Society,  that  it 
was  not  denominational ;  as  to  such  a  question  we  must  be  guided 
by  such  evidence  as  is  to  be  found  in  the  history  of  the  Society. 
The  word  Church  in  the  charter,  used  in  connection  with  the  locality 
specified,  is  to  be  construed  in  connection  with  such  circum¬ 
stances  as  surrounded  the  founders  at  the  time,  and  we  are  to  de¬ 
rive  our  knowledge  of  what  was  their  intention  from  those  circum¬ 
stances.  and  those  alone.  The  first  and  best  evidence  is  the  ori¬ 
ginal  petition  of  1789,  in  which  they,  speaking  in  their  own  lan¬ 
guage,  used  the  word  Churches,  instead  of  Church,  and  State  of 
youth  Carolina,  instead  of  City  of  Charleston.  In  the  charter,  in- 

3 


2  Jones  and 
La  Touciie,  182. 


34 


stead  of  the  word  Churches,  as  in  the  Petition,  the  Legislature, 
and  not  the  Petitioners,  adopted  the  word  Church  for  Churches,  but 
gave  correctly  the  specified  locality,  the  State  of  Soutli  Carolina. 
The  next  evidence  is  to  be  found  in  the  preamble  and  rules  of  the 
Society.  The  preamble  begins  with  these  words:  “  As  it  is  an 
obligation  of  the  Gospel  on  Christians,  of  all  denominations,  to 
encourage  and  support  its  Ministers,  who  are  their  Pastors  in  the 
Lord.”  1.  Rule,  That  this  Society  shall  be  called  “The  Society 
for  the  relief  of  Elderly  and  Disabled  Ministers,  and  of  the 
Widows  and  Orphans  of  the  Clergy  of  the  Independent  or  Congre¬ 
gational  Church  in  the  State  of  South  Carolina.  Rule  II.  provides 
that  the  anniversary  of  the  Society  be  held  in  “  the  Independent 
Church ”  in  Charleston.  Rule  III.  requires  the  Secretary  and  Treas¬ 
urer  to  be  residents  in  Charleston.  Rule  IV.,  clause  2d,  provides 
that  every  member,  residing  in  Charleston,  who  shall  not  attend  the 
meetings  of  the  Society,  shall  forfeit  the  sum  of  2s.  f>d.  Sterling. 
The  next  evidence  is  furnished  from  the  books  of  the  Circular 
Church  and  of  the  Society;  that  the  relation  of  debtor  and  creditor 
had  existed  between  the  Church  and  Society,  on  several  occasions 
previous  to  the  Act  of  1834,  and  that  the  Society  always,  until  that 
time,  fully  recognized  the  difference  between  the  two  corpora¬ 
tions;  that  after  the  Act  of  1834,  the  Society  began  to  recognize 
and  treat  the  property  as  their  own,  first  by  cancelling  the  debts 
due  by  the  Church  to  the  Society;  secondly,  by  guarantying  a 
debt  for  the  Church,  and  subsequently  paying  it,  and  thirdly,  by 
making  an  appropriation  for  the  rebuilding  the  Church;  and  I 
believe  I  am  within  bounds  in  saying  that  since  the  Act  of  1»34, 
more  than  one  half  of  the  capital  of  the  Society  has  been  absorbed  in 
appropriations  for  the  benefit  of  the  Circular  Church;  that  the 
Society  prior  to  the  Act  of  1834,  was  not  regarded  as  a  part  of  the 
Circular  Church,  and  its  funds  a  part  of  their  property,  is  very 
fully  established  by  their  own  proceedings.  They  deemed  it  neces¬ 
sary  to  have  their  charter  amended,  in  fact  repealed,  as  stated  in 
their  answer  to  the  original  bill,  as  soon  as  the  charter  of  1834 
was  granted,  the  rules  of  the  Society  were  altered  to  conform  tc 
the  new  state  of  things.  All  the  circumstances  connected  with  the 
Society,  from  its  origin  to  the  Act  of  1834,  show  that  it  was  lha 
intention  of  the  founders  that  their  charity  should  be  denominai 
tional — catholic  as  to  the  State. 

There  can  be  no  doubt  that  these  pious  dissenters  had  in  thei 
views  the  similar  society  established  by  the  Episcopal  Church  foi 


35 


the  benefit  of  their  clergy  three  years  previously — a  society  whose 
'benefits  have  been  felt  from  the  mountain  to  the  seaboard.  If 
these  views  are  correct,  and  I  do  not  see  how  they  can  be  other¬ 
wise,  this  charity  in  its  origin  was  co-extensive  with  the  whole 
State,  and  embraced  within  its  scope  all  Churches  of  that  denomi¬ 
nation  which  do  or  may  exist  in  that  prescribed  locality.  It  has 
oeen  said,  in  fact,  sneeringly  said,  that  Wappetaw  Church  was 
tot  an  Independent  or  Congregational  Church,  or  at  least  not  so 
mtil  1853,-  when  it  is  alleged  that  it  took  that  corporate  name 
vith  a  view  to  acquire  an  interest  in  the  funds  of  this  society. 
We  will  let  the  facts  speak  for  themselves.  It  is  true  that  the 
Wappetaw  Church  has  been  at  different  times  chartered  by  dif- 
'erent  names,  but  it  is  not  true  that  she  ever  had  any  other  faith 
ind  Church  government  than  that  professed  and  held  by  Inde¬ 
pendent  or  Congregational  Churches.  The  Wappetaw  Church 
vas  incorporated  in  1786  by  “  the  name  of  the  Independent 
Church  in  Christ  Church  Parish,”  with  a  perpetual  charter,  and  in 
he  Church  articles  of  faith  recorded  in  the  old  Church  Record 
Book  of  that  date  is  to  be  found  her  Constitution  and  form  of  gov- 
irnment,  and  is  styled  in  that  Constitution,  “The  Independent  or 
Congregational  Church  worshipping  at  Wappetaw,  Christ  Church 
•’arish.”  The  articles  of  faith  and  form  of  Church  government 
eem  to  have  been  taken  from  the  Circular  Church,  as  they  are 
dentically  the  same  in  all  respects  save  where  the  localities  render 
.change  necessary  for  such  local  purposes. 

By  an  Act  passed  in  1822,  this  same  Congregation  was  re-incor- 
lorated  with  a  limited  charter  for  fourteen  years,  as  follows: 

: Those  who  are  now  or  hereafter  shall  be  members  of  the  lnde- 
lendent  or  Congregational  Church  at  Wappetaw,  in  Christ  Church 
■'arish,  be,  and  the  same  are  hereby  declared  a  body  politic  or 
orporate  by  the  style  and  title  of  the  Congregation  of  Wappetaw 
n  the  Parish  of  Christ  Church,”  without  repealing  the  Statute  of 
786.  In  1836,  this  charter  of  1822  expired,  and  was  renewed  for 
ourteen  years  without  repealing  the  Act  of  1786,  and  then  expired 
>y  its  own  limitation  in  1850.  In  1853,  the  same  Congregation 
vas  incorporated  by  the  name  and  style  of  “the  Independent  or 
Congregational  Church  of  Wappetaw.  During  this  whole  period  of 
ime  this  Congregation  held  to  the  same  articles  of  Faith,  Consti- 
Jtion  and  form  of  government.  I  will  proceed  to  show  the  effect 
f  the  several  Statutes,  that  the  defend'ants  may  be  informed 
s  to  the  legal  position  of  that  Church;  the  Charter  of  1786  is 


l 


8  Stat.  134. 


8  Stat.  325. 

8  Stat.  448. 

Stat.  236. 


36 


SDivans  on  Stat. 
527. 

Idem.  534. 


2  Bailey,  334,  554. 


2  Rich.  E.  210. 


perpetual;  the  Charters  of  1822  and  1836  were  without  any  repeal¬ 
ing  clause,  and  were  only  additions  or  amendments  to  the  Act  of 
1786,  and  have  expired  by  their  own  limitations  and  are  of  no 
effect  at  all,  and  have  left  the  Charter  of  1786  in  full  force  and 
effect.  What  is  the  law  ?  It  is  this,  that  a  temporary  Statute  con-1 
tinues  of  force  unless  sooner  repealed,  until  it  expires  ;  a  perpetual' 
one  until  it  is  repealed.  If  a  Statute  before  perpetual  be  con¬ 
tinued  by  an  affirmative  one  for  a  limited  time,  it  does  not  amount 
to  a  repeal  thereof  at  the  end  of  that  time.  The  leading  case  is 
in  Lord  Raymond’s  Reports,  397,  all  Statutes  on  the  same  subject 
must  be  construed  in  peri  materia,  whether  they  refer  to  each  other 
or  not.  When  the  last  Charter  was  granted  in  1853,  the  Charier  of 
1786  was  in  force.  The  Act  in  1853  does  not  repeal  it,  and  is  like 
it,  perpetual,  and  is  to  be  construed  as  an  amendment  by  which 
the  name  was  changed.  But  the  great  principle  of  law  upon 
which  such  matters  are  determined  is  not  by  the  name,  but  the 
faith  of  the  Church,  and  I  did  not  presume,  after  the  Presbyterian 
Church  case,  that  it  was  possible  for  any  such  idea  to  prevail. 
There  are  innumerable  instances  of  Churches  being  called  by 
names  not  in  any  way  indicative  of  their  faith.  There  is  the 
new  Baptist  Church  for  instance,  which  has  been  incorporated  by 
the  name  of  the  Citadel  Square  Church  ;  does  that  make  them  less 
a  Baptist  Church?  Surely  not.  I  have  now  endeavored  to  bring  to 
the  notice  of  the  Court  all  the  legal  questions  involved  in  this  issue, 
and  as  many  of  the  facts  as  were  necessary  to  give  point  to  my 
argument,  and  before  leaving  the  cause  to  the  judgment  of  the 
Court,  I  cannot  refrain  from  alluding  to  its  great  importance.  The 
law  of  this  case  will  be  the  law  of  all  of  our  Charitable  Institutions. 
The  law  of  this  case  will  be  the  law  of  all  of  our  Trusts,  chari¬ 
table  and  otherwise,  and  as  one  of  the  officers  of  this  Court,  it  is 
my  sincere  hope  that  it  will  be  ruled  and  decided  in  like  manner 
as  Sir  John  Romilly  did  the  St.  Cross  Hospital  case,  to  restore  the 
charity  to  its  original  trusts,  even  after  it  had  been  perverted  for' 
over  a  century  and  a  half. 


APPENDIX 


MR.  FINLEY’S  MINORITY  REPORT. 

The  undersigned,  not  being  able  to  assent  to  all  of  the  positions  taken  in  the 
report  of  the  Chairman  of  the  Committee,  begs  leave,  as  a  member  of  the  Com¬ 
mittee,  to  submit  the  following  as  a  separate  expression  of  his  own  views  on  the 
questions  involved  in  the  subject  referred  to  them.  These  questions  are: 

1st.  As  to  the  nature  and  object  of  the  original  trust  ;  next,  as  to  the  effect  of 
the  charter  of  183d;  and  lastly,  as  to  the  denominational  status  of  the  Wappetaw 
Church.  On  these  questions  the  undersigned,  being  pressed  for  time,  can  present 
but  a  very  cursory  statement  of  his  views,  and  1st,  as  to  the  nature  and  object  of 
the  original  trust,  the  undersigned  thinks  it  very  obvious  that  this  question  must 
be  determined  by  the  provisions  of  the  original  charter;  this  bears  date  March  7, 
1789,  and  is  entitled  “An  Act  incorporating  the  Society  for  the  relief  of  elderly 
and  disabled  ministers,  and  of  the  widows  and  orphans  of  the  Clergy  of  the  Inde¬ 
pendent  or  Congregational  Church  in  the  State  of  South  Carolina,"’  as  the  Chair¬ 
man  reports  on  the  petition  of  Win.  Hollingshead,  Isaac  S.  Keith.  Josiah  Smith, 
and  sundry  other  members  of  the  Society,  -the  said  Society  was  incorporated  in 
perpetuity  by  the  name  and  style  of  the  Society  for  the  relief  of  elderly  and 
disabled  ministers,  and  of  the  widows  and  orphans  of  the  clergy  of  the  Indepen¬ 
dent  or  Congregational  Church  in  the  State  of  South  Carolina.  It  is  very  material 
to  observe  that  the  limits  within  which  the  benefactions  of  the  Society  are  to  be 
conferred  and  enjoyed  are  by  the  terms  of  the  charter  made  co-extensive  with  the 
State  of  South  Carolina,  and  are  not  restricted  to  the  limits  of  the  city  of  Charles¬ 
ton.  The  undersigned,  therefore,  is  at  a  loss  to  conceive  why  the  Wappetaw 
Church,  of  Christ  Church  Parish,  if  it  be  an  Independent  or  Congregational 
Church,  is  not  as  well  entitled  to  enjoy  the  benefits  of  this  Society,  if  the  original 
charter  is  to  govern  the  administration  of  the  trust,  as  the  Circular  Church  of 
Charleston  itself. 

2.  The  next  question  is  as  to  the  effect  of  the  charter  of  1834.  It  is  said  that 
the  charter  of  ’34  altered,  nay,  repealed  the  original  charter  of  1789.  Indeed, 
such  are  the  terms  of  the  Act  of  1834,  as  quoted  by  the  Chairman;  and  the  ques¬ 
tion  which  now  arises  is  as  to  the  constitutional  authority  of  the  Legislature  of  this 
State  to  abolish  the  charter  of  ’39,  and  designate  a  different  object  and  purpose 
in  the  administration  of  the  trust  from  what  was  prescribed  and  appointed  by  that 
charier.  In  the  opinion  of  the  undersigned,  that  Act,  so  far  as  it  aimed  to  produce 
any  such  result,  was  wholly  unconstitutional,  null  and  void,  and,  therefore,  that 
the  rights  of  th e  cestui  que  trust,  under  the  original  charter,  are  still  unimpaired, 
and  will  be  enforced  by  a  Court  of  Equity. 

The  undersigned  is  of  opinion  that  the  Act  of  1834,  so  far  as  it  contravenes  the 
charter  of  1789,  is  unconstitutional,  for  the  following  reasons  :  wherever  funds  are 
given  for  a  specific  object,  and  assuredly  all  funds  given  to  this  Society,  prior  to  the 
17lh  December,  1834,  must  be  considered  as  given  for  the  objects  specified  in  the 
charter  of  1789  ;  in  all  cases  where  funds  are  given  for  a  specific  object  a  contract  is 
implied,  by  the  principles  both  of  Law  and  Equity,  between  the  donor  and  donee, 
that  the  funds  will  be  appropriated  and  expended  in  accordance  with  the  pre¬ 
scribed  objects  and  purposes,  and  in  no  other  way.  Where  one  accepts  funds 
with  a  condition  annexed,  he  agrees  to  fulfil  the  condition.  Where  one  accepts 

4 


38 


funds  in  trust  that  he  will  apply  them  to  a  certain  object,  he  virtually  agrees  to 
perform  the  trust  and  apply  the  funds  to  that  object,  and  there  can  be  no  doubt  that 
if  the  funds  are  misapplied,  or  applied  to  a  different  object,  it  is  a  breach  of  the 
trust,  a  breach  of  contract  between  the  donor  and  the  distributee  of  the  fund,  and 
that  any  one  standing  in  the  relation  of  cestui  que  trust ,  under  the  instrument  or 
charter  creating  the  trust,  would  be  entitled  to  file  his  bill  in  a  Court  of  Equity  to 
obtain  indemnity  for  the  past  and  security  for  the  future.  There  can  be  no  doubt, 
therefore,  in  the  opinion  of  the  undersigned,  that  both  in  Law  and  Equity  there 
was  a  contract  between  this  Society  and  the  contributors  to  its  funds  prior  to  the 
charter  of  1S34,  that  these  funds  should  be  applied  to  the  relief  of  elderly  and  dis¬ 
abled  ministers,  and  the  widows  and  orphans  of  the  clergy  of  the  Independent  or 
Congregational  Church  in  the  State  of  South  Carolina.  Now  the  Act  of  ’31  comes 
in  and  repeals  the  charter  of  ’69,  annuls  its  provisions,  abolishes  the  trust  is 
created,  and  appoints  new  objects,  different  purposes  for  the  application  of  the 
funds  of  this  Society.  The  undersigned  submits  whether  this  be  not  a  clear  case 
of  an  Act  of  the  Legislature,  invalidating  a  contract,  or  in  the  language  of  the 
Constitution,  “impairing  the  obligation”  of  a  contract,  and  therefore,  as  being  in 
contravention  of  the  Constitution,  null,  void  and  of  no  effect.  In  the  opinion  of 
the  undersigned,  it  makes  not  the  least  difference  in  this  case,  that  the  repeal  of 
the  original  charter  was  upon  the  petition  of  this  Corporation.  This  Corporation 
was  not  the  only  party  to  the  contract,  and  occupied  in  relation  to  the  fund,  the 
position  simply  of  a  trustee — an  agent  or  distributor  of  the  same,  according  to 
the  prescribed  terms  of  the  donation.  Before  the  original  contract  could  be  legally 
rescinded,  the  donors  who  created  the  fund  and  the  trust,  (all  of  whom,  it  is  pre¬ 
sumed.  were,  in  1S34,  in  their  graves,)  must  have  given  their  eonsent,  and  also, 
(the  undersigned  should  suppose,)  the  cestui  que  trust  who  were  entitled  to  the 
benefit  of  the  original  charter.  It  is  hardly  to  be  supposed  that  the  party  to  the 
contract  which  had  the  least  interest  in  its  preservation  or  continuance,  should 
be  authorized  by  his  own  act,  and  it  is  perhaps  not  saying  too  much,  by  his  own 
wrong,  technically  to  destroy  its  validity. 

The  only  remaining  question  which  the  undersigned  will  consider,  is  as  to  the 
denominational  status  of  Wappetaw  Church.  This  Church  was  first  incorporated 
on  the  23d  March,  1736,  with  the  title  of  “The  Independent  Church  in  Christ 
Church  Parish.” 

This  was  prior  to  the  first  charier  of  this  Society,  and  the  only  question  is, 
whether  the  Wappetaw  Church  could  claim  at  that  period  the  title  of  “an  Inde¬ 
pendent  or  Congregational  Church.”  within  the  purview  of  the  provisions  of  the 
charter  of  17s9.  The  undersigned  is  of  opinion  it  was  properly  entitled  to  this 
denomination. 

The  terms  “  Independent  or  Congregational,”  are  used  in  the  charter  as  synoni- 
mous,  and  in  fact  in  the  ecclesiastical  vocabulary,  signifying  the  same  thing.  All 
independent  churches  are  congregational,  that  is,  the  supreme  authority  in  the 
government  of  the  church  is  vested  in  the  congregation,  as  contradistinguished 
from  that  form  of  church  government  where  the  supreme  authority  is  vested  in  a 
Presbytery,  Synod,  General  Assembly  or  Convention.  Under  the  independent  or 
congregational  system,  each  church  is  a  separate  and  sovereign  community,  the 
congregation  possessing  the  authority  of  determining  all  questions  in  the  last  re¬ 
sort.  Such,  we  think,  was  the  Constitution  of  the  Wappetaw  Church  in  Christ 
Church  Parish,  and  such  its  denominational  status,  and  as  such  it  had  a  rightful 
claim  to  the  benefits  of  this  Society. 

All  of  which  is  respectfully  submitted. 


W.  PERONNEAU  FINLEY. 


m 


